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Full text of "North Carolina Register v.8 no. 14 (10/15/1993)"

RBR/ KrNi/7A34- /, A 2 / NgI 



RECEIVED 



OCT ^1 1993 



LAW LIBRARY 



NORTH CAROLINA 

REGISTER 



IN TfflS ISSUE 



EXECUTIVE ORDERS 



PROPOSED RULES 

Commerce 

Enviromnent, Health, and Natural Resources 

Human Resources 

Insurance 

Pharmacy, Board of 

Therapeutic Recreation Certification Board 



RRC OBJECTIONS 



RULES INVALIDATED BY JUDICIAL DECISION 



CONTESTED CASE DECISIONS 



ISSUE DATE: October 15, 1993 



Volume 8 • Issue 14 • Pages 1308 - 1367 



TNFORMATTON ABOUT THE NORTH CAROLINA REGISTER AND ADMTNISTRATTVE CODE 



NORTH CAROLINA REGISTER 



TEMPORARY RULES 



Tlie North Carolina Register is published twice a month and 
contains information relating to agency, executive, legislative and 
judicial actions required by or affecting Chapter 150B of the 
General Statutes. All proposed administrative rules and notices of 
public hearings filed under G.S. 150B-21.2 must be published in 
the Register. The Register will typically comprise approximately 
fifty pages per issue of legal text. 

State law requires that a copy of each issue be provided free of 
charge to each county in the state and to various state officials and 
institutions. 

The North Carolina Register is available by yearly subscription 
at a cost of one hundred and five dollars (5105.00) for 24 issues. 
Individual issues may be purchased for eight dollars ($8.00). 

Requests for subscription to the North Carolina Register should 
be directed to the Office of Administrative Hearings, 
P. 0. Drawer 27447, Raleigh, N. C. 2761 1-7447. 



Under certain emergency conditions, agencies may issue 
temporary rules. Within 24 hours of submission to OAH, the 
Codifier of Rules must review the agency's written statement of 
findings of need for the temporary rule pursuant to the provisions in 
G.S. 150B-21.1. If the Codifier determines that the findings meet 
the criteria in G.S. 150B-21.1, the rule is entered into the NCAC. If 
the Codifier determines that the fmdings do not meet the criteria, 
the rule is returned to the agency. The agency may supplement its 
findings and resubmit the temporary rule for an additional review 
or the agency may respond that it will remain with its initial 
position. The Codifier, thereafter, will enter the rule into the 
NCAC. A temporary rule becomes effective either when the 
Codifier of Rules enters the rule in the Code or on the sixth 
business day after the agency resubmits the rule without change. 
The temporary rule is in effect for the period specified in the rule or 
180 days, whichever is less. An agency adopting a temporar,' rule 
must begin rule-making procedures on the permanent rule at the 
same time the temporary rule is filed with the Codifier. 



ADOPTION AMENDMENT, AND REPEAL OF 
RULES 



NORTH CAROLINA ADMINISTRATIVE CODE 



The following is a generalized statement of the procedures to be 
followed for an agency to adopt, amend, or repeal a rule. For the 
specific statutory authority, please consult Article 2A of Chapter 
150B of the General Statutes. 

Any agency intending to adopt, amend, or repeal a rule must 
first publish notice of the proposed action in the North Carolina 
Register. The notice must include the time and place of the public 
hearing (or instructions on how a member of the public may request 
a hearing); a statement of procedure for public comments; the text 
of the proposed rule or the statement of subject matter; the reason 
for the proposed action; a reference to the statutory authority for the 
action and the proposed effective date. 

Unless a specific statute provides otherwise, at least 15 days 
must elapse following publication of the notice in the North 
Carolina Register before the agency may conduct the public 
hearing and at least 30 days must elapse before the agency can take 
action on the proposed rule. An agency may not adopt a rule tliat 
differs substantially from the proposed form published as part of 
the public notice, until the adopted version has been published in 
the North Carolina Register for an additional 30 day comment 
period. 

When final action is taken, the promulgating agency must file 
the rule with the Rules Review Commission (RRC). After approval 
by RRC, the adopted rule is filed with the Office of Administrative 
Hearmgs (OAH). 

A rule or amended rule generally becomes effective 5 business 
days after the rule is filed with the Office of Administrative 
Hearings for publication in the North Carolina Administrative Code 
(NCAC). 

Proposed action on rules may be withdrawn by the promulgating 
agency at any time before final action is taken by the agency or 
before filing with OAH for publication in the NCAC. 



The North Carolina Administrative Code (NCAC) is a 
compilation and index of the administrative rules of 25 stale 
agencies and 38 occupational licensing boards. The NCAC 
comprises approximately 15,000 letter size, single spaced pages of 
material of which approximately 35% of is changed annually. 
Compilation and publication of the NCAC is mandated by G.S. 
150B-21.18. 

The Code is divided into Titles and Chapters. Each state agency 
is assigned a separate title which is further broken down by 
chapters. Title 21 is designated for occupational licensing boards. 

The NCAC is available in two formats. 

(1) Single pages may be obtained at a minimum cost of 
two dollars and 50 cents (S2.50) for 10 pages or less, 
plus fifteen cents (S0.15) per each additional page. 

(2) The full publication consists of 53 volumes, totaling in 
excess of 15,000 pages. It is supplemented monthly 
with replacement pages. A one year subscription to the 
full publication including supplements can be 
purchased for seven hundred and fifty dollars 
(S750.00). Individual volumes may also be purchased 
with supplement service. Renewal subscriptions for 
supplements to the initial publication are available. 

Requests for pages of rules or volumes of the NCAC should be 
du'ected to the Office of Administrative Hearings. 



CITATION TO THE NORTH CAROLINA 
REGISTER 

The North Carolina Register is cited by volume, issue, page 
number and date. 1:1 NCR 101-201, April 1, 1986 refers to 
Volume 1, Issue 1, pages 101 through 201 of the North Carolina 
Register issued on April 1, 1986. 



FOR INFORMATION CONTACT: Office of 
Administrative Hearings, ATTN: Rules Division, P.O. 
Drawer 27447, Raleigh, North Carolina 27611-7447, (919) 
733-2678. 



NORTH 
CAROLINA 
REGISTER 




Office of Administrative Hearings 

P. O. Drawer 27447 

Raleigh, North Carolina 27611-7447 

(919) 733-2678 



Julian Mann III, 

Director 
James R. Scarcella Sr. , 

Deputy Director 
Molly Masich, 

Director of APA Services 



Staff: 

Ruby Creech, 

Publications Coordinator 
Teresa Kilpatrick, 

Editorial Assistant 
Jean Shirley, 

Editorial Assistant 



ISSUE CONTENTS 



I. EXECUTIVE ORDERS 

Executive Orders 28-30 1308 

II. PROPOSED RULES 
Commerce 

ABC Commission 1310 

Banking Commission 1312 

Environment, Health, and 
Natural Resources 

Soil and Water Conservation .... 1322 

Human Resources 

Facility Services 1312 

Medical Assistance 1316 

Insurance 
Actuarial Services Division .... 1321 
Financial Evaluation Division . . . 1317 
Life and Health Division 1318 

Licensing Boards 

Pharmacy, Board of 1326 

Therapeutic Recreation Certification 
Board 1328 

III. RRC OBJECTIONS 1333 

IV. RULES INVALIDATED BY 
JUDICIAL DECISION 1337 

V. CONTESTED CASE DECISIONS 

Index to ALJ Decisions 1338 

Text of Selected Decisions 

92 OS? 1180 1346 

92 DST 1439 1356 

93 DST 0198 1360 

VI. CUMULATFVE INDEX 1365 



NORTH CAROLINA REGISTER 

Publication Schedule 

(July 1993 - May 1994) 



Volume 
and 
Issue 

Number 


Issue 
Date 


Last Day 

for 

FiLmg 


Last Day 
for Elec- 
tronic 
Filing 


Earliest 
Date for 
Public 
Hearing 
75 days 
from 
notice 


* End of 

Required 

Comment 

Penod 

30 days 

from 

notice 


Last Day 

to Submit 

toRRC 


** Earliest 

Effective 

Date 


8:7 


07/01/93 


06/10/93 


06/17/93 


07/16/93 


08/02/93 


08/20/93 


10/01/93 


8:8 


07/15/93 


06/23/93 


06/30/93 


07/30/93 


08/16/93 


08/20/93 


10/01/93 


8:9 


08/02/93 


07/12/93 


07/19/93 


08/17/93 


09/01/93 


09/20/93 


11/01/93 


8:10 


08/16/93 


07/26/93 


08/02/93 


08/31/93 


09/15/93 


09/20/93 


11/01/93 


8:11 


09/01/93 


08/11/93 


08/18/93 


09/16/93 


10/01/93 


10/20/93 


12/01/93 


8:12 


09/15/93 


08/24/93 


08/31/93 


09/30/93 


10/15/93 


10/20/93 


12/01/93 


8:13 


10/01/93 


09/10/93 


09/17/93 


10/18/93 


11/01/93 


11/22/93 


01/01/94 


8:14 


10/15/93 


09/24/93 


10/01/93 


11/01/93 


11/15/93 


11/22/93 


01/01/94 


8:15 


11/01/93 


10/11/93 


10/18/93 


11/16/93 


12/01/93 


12/20/93 


02/01/94 


8:16 


11/15/93 


10/22/93 


10/29/93 


11/30/93 


12/15/93 


12/20/93 


02/01/94 


8:17 


12/01/93 


11/05/93 


11/15/93 


12/16/93 


01/03/94 


01/20/94 


03/01/94 


8:18 


12/15/93 


11/24/93 


12/01/93 


12/30/93 


01/14/94 


01/20/94 


03/01/94 


8:19 


01/03/94 


12/08/93 


12/15/93 


01/18/94 


02/02/94 


02/21/94 


04/01/94 


8:20 


01/14/94 


12/21/93 


12/30/93 


01/31/94 


02/14/94 


02/21/94 


04/01/94 


8:21 


02/01/94 


01/10/94 


01/18/94 


02/16/94 


03/03/94 


03/21/94 


05/01/94 


8:22 


02/15/94 


01/25/94 


02/10/94 


03/02/94 


03/17/94 


03/21/94 


05/01/94 


8:23 


03/01/94 


02/08/94 


02/15/94 


03/16/94 


03/31/94 


04/20/94 


06/01/94 


8:24 


03/15/94 


02/22/94 


03/10/94 


03/30/94 


04/14/94 


04/20/94 


06/01/94 


9:1 


04/04/94 


03/11/94 


03/18/94 


04/19/94 


05/04/94 


05/20/94 


07/01/94 


9:2 


04/15/94 


03/24/94 


03/31/94 


05/02/94 


05/16/94 


05/20/94 


07/01/94 


9:3 


05/02/94 


04/11/94 


04/18/94 


05/17/94 


06/01/94 


06/20/94 


08/01/94 


9:4 


05/16/94 


04/25/94 


05/02/94 


05/31/94 


06/15/94 


06/20/94 


08/01/94 



Note: Time is computed according to the Rules of Civil Procedure, Rule 6. 

* An agency must accept comments fr)r at least 30 days after the proposed text is published or until the date 
of any public hearing, whichever is longer See G.S. 150B-21. 2(f) for adoption procedures. 

** The "Earliest Effective Date" is computed assuming that the agency follows the publication schedule above, 
that the Rules Review Commission approves the rule at the next calendar month meeting after submission, ami 
that RRC delivers the rule to the Codifier of Rules five (5) business days before the 1st business day of the next 
calendar month. 



Reiised 07/93 



EXECUTIVE ORDERS 



EXECUTIVE ORDER NUMBER 28 

AGRICULTURE, FORESTRY, AND 

SEAFOOD INDUSTRY ADVISORY 

COMMITTEE 



(b) Members of the Committee shall serve on a 
voluntary basis without compensation of any sort, 
including travel or subsistence allowable under 
state law. 



WHEREAS, the harvest of North Carolina's 
fields, forests and waters is a principal element in 
the economy of our State; and 

WHEREAS, State policy on agriculture, forestry, 
and the seafood industry as set by the Governor 
should be developed with the advice of representa- 
tives from those industries. 



This Executive Order shall be effective immedi- 
ately. 

Done in Raleigh, North Carolina, this the 28th 
day of September, 1 993 . 

EXECUTIVE ORDER NUMBER 29 
TEACHER ADVISORY COMMITTEE 



NOW, THEREFORE, by the authority vested in 
me as Governor by the Constitution and laws of 
North Carolina, IT IS ORDERED: 

Section 1. COMMITTEE AND MEMBERSHIP 

(a) There is hereby established the Advisory 
Committee on Agriculture, Forestry, and the 
Seafood Industry ("Committee"). 

(b) The Committee shall consist of at least 15 
members who shall be appointed by the Governor. 
The Governor shall appoint a Chair and Vice- 
Chair of the Committee. 

(c) Initially, one half of the members shall serve 
for two-year terms, and one half shall serve one- 
year terms. Thereafter, each member shall serve 
a two-year term. 

(d) Meetings may be called by the Governor or 
the Chair, and shall be held at least quarterly. 

Section 2. DUTIES 

The Committee shall have the following func- 
tions and duties: 

(a) to advise the Governor concerning his 
policies related to the harvest of fields, 
forests, and waters; 

(b) to afford citizens the opportunity to voice 
their views, suggestions, and ideas re- 
garding these matters; 

(c) to advise the Governor about matters 
revealed by its inquiries and presented to 
it by the citizens of North Carolina; 
which relate to fields, forests, and wa- 
ters; and 

(d) to undertake such other functions and 
duties as may be assigned by the Gover- 
nor. 

Section 3. ADMINISTRATION 

(a) The Governor's Office shall provide such 
clerical and other support services as may be 
required by the Committee. 



By the authority vested in me as Governor by the 
Constitution and laws of the State of North Caroli- 
na, IT IS ORDERED: 

Section 1. Establishment . 

There is hereby established A Teacher Advisory 
Committee ("Committee"). The Committee shall 
be composed of fifteen members appointed by the 
Governor. The appointed members shall serve 
two year terms. The Governor shall also appoint 
the Chair. 

Section 2. Meetings . 

(a) The Committee shall meet at least once each 
quarter and may hold special meetings at any time 
at the call of the Chair or the Governor. 

(b) The Committee must meet as a quorum. A 
quorum, for the purposes of this Order, is defined 
as a simple majority. 

Section 3. Expenses and Administration. 

(a) Committee members shall receive necessary 
travel and subsistence expenses, in accordance 
with North Carolina law. If they are not otherwise 
reimbursed for their out-of-pocket expenditure of 
$52.(X)/day substitute teacher pay, members may 
request that amount as well. 

(b) The Office of the Governor shall provide 
staff and administrative support services for the 
Committee. 

Section 4. Duties 

(a) Advise the Governor concerning the experi- 
ences and reactions of teachers in the classrooms 
of North Carolina and assist the Governor in his 
eflForts to improve teaching conditions. 

(b) Recommend ways to end intellectual isola- 
tion among teachers and to increase meaningful 
school-based decision making. 

(c) Examine factors that encourage excellent 
students to seek a career in teaching and highly 



8:14 



NORTH CAROLINA REGISTER 



October 15, 1993 



1308 



EXECUTIVE ORDERS 



professional teachers to remain in the classroom. 
Recommend ways to replicate those factors. 

(d) Identify, recognize, and celebrate entrepre- 
neurial schools and school systems in North 
Carolina, i.e. those that take risks to improve 
educational outcomes for children. 

(e) Propose methods of rewarding teachers 
achieving certification from the National Board for 
Professional Teaching Standards. 

(f) Serve as an advisory committee to the North 
Carolina Standards and Accountability Commis- 
sion. 

This Order shall be effective immediately. 

Done in Raleigh, North Carolina, this the 28th 
day of September, 1993. 

EXECUTIVE ORDER NUMBER 30 
fflGHWAY BEAUTIFICATION COUNCIL 



(3) promote citizens' participation in the 
department's volunteer beautification 
programs; 

(4) provide information to the citizens of 
North Carolina concerning highway 
beautification issues; 

(5) promote anti-litter activities of the De- 
partment of Transportation; and 

(6) recommend measures to reduce solid 
waste by 25% in 1993 and by 40% by 
the year 2001. 

Section 5. Administrative Support and Expens- 
es. 

Administrative and other support services for the 
Council shall be provided by the Department of 
Transportation. Council members shall receive 
reasonable travel and subsistence expenses in 
accordance with state law. Expenses shall be paid 
out of the Department of Transportation's budget. 



By the authority vested in me as Governor by the 
Constitution and laws of the State of North Caroli- 
na, IT IS ORDERED: 

Section 1. Establishment. 

There is hereby established the Highway Beauti- 
fication Council ("Council"). 



Section 6. Rescission. 

Martin Administration Executive Order 126, as 
amended, is hereby rescinded. The Council 
created herein shall be the successor to that High- 
way Beautification Council. 

This Order shall be effective immediately. 



Section 2. Membership . 

The Council shall consist of 20 members to be 
appointed by the Governor. Ten members shall 
serve two-year initial terms and ten members shall 
serve four-year initial terms. Thereafter, all 
appointments shall be for four-year terms. Each 
one of the transportation divisions shall be repre- 
sented by one member. Six members shall repre- 
sent the State at-large. 



Done in Raleigh, North Carolina, this the 28th 
day of September, 1 993 . 



Section 3. Chair. 

The Chair shall be chosen from among the 
membership of the Council by the Governor and 
shall serve as such at the pleasure of the Governor. 
TTie Chair shall coordinate the activities of the 
Council. 

Section 4. Purpose. 

The purpose of the Council is to: 

(1) provide for citizens' input to the Depart- 
ment of Transportation on new and exist- 
ing highway beautification programs; 

(2) make recommendations to the Depart- 
ment of Transportation regarding expen- 
ditures for the planting of wildflowers 
and/or other fiora along State highways; 



1309 



8:14 



NORTH CAROLINA REGISTER 



October 15, 1993 



PROPOSED RULES 



TITLE 4 - DEPARTMENT OF 
COMMERCE 

lyotice is hereby given in accordance with G.S. 
150B-2L2 that the North Carolina ABC Commis- 
sion intends to amend rule cited as 4 NCAC 2S 
.0612; and adopt rules cited as 4 NCAC 2S .0613 
- .0616 

1 he proposed effective date of this action is 
January 1, 1994. 

1 he public hearing will be conducted at 9:30 
a.m. on November 19, 1993 at the Hearing Room, 
North Carolina ABC Commission, 3322 Gamer 
Road, Raleigh, NC 27610. 

MXeason for Proposed Action: The proposed rules 
are necessary due to recent changes made by the 
General Assembly to the alcoholic beverage con- 
trol laws. 

(comment Procedures: Comments should be filed 
by November 18, 1993 and addressed to: 

Ann S. Fulton, Commission Counsel 

North Carolina ABC Commission 

PO. Box 26687 

Raleigh, NC 27611 

hiditor's Note: These Rules were filed as tempo- 
rary rules effective September 24, 1993 for a 
period of 180 days or until the permanent rule 
becomes effective, whichever is sooner. 

CHAPTER 2 - BOARD OF ALCOHOLIC 
CO>rrROL 

SUBCHAPTER 2S - RETAIL BEER: WINE: 

MIXED BEVERAGES: BROWNBAGGEVG: 

ADVERTISING: SPECIAL PERMITS 

SECTION .0600 - SPECIAL 

REQUIREMENTS FOR CONVENTION 

CENfTERS, COMMUNITY THEATRES, 

SPORTS CLUBS, AND NOIVPROFIT AND 

POLITICAL ORGANIZATIONS 

,0612 RECORD KEEPING 

(a) Convention centers, community theatres, 
sports olubs, nonprofit and political organizations 
holding Mixed Beverages permits shall maintain 



full and accurate monthly records of their finances, 
separately indicating each of the following: 

(1) amounts expended for the purchase of 
spirituous liquor from ABC stores and 
the quantity of spirituous liquor pur- 
chased; 

(2) amounts collected from the sale of 
mixed beverages and, by brand and 
container size, the quantity of spirituous 
liquor sold; 

(3) the quantity of spirituous liquor, by 
brand and container size, that was not 
sold but is no longer on the premises 
due to stated reasons, such as breakage 
or theft. 

(b) Segregation of Records. Records of pur- 
chases of spirituous liquor and sales of alcoholic 
beverages shall be filed separate and apart from all 
other records maintained on the premises. 

(c) Retention and Inspection of Records. Re- 
cords, including original invoices related to alco- 
holic beverages and mixed beverages, shall be 
maintained on the premises for three years and 
shall be open for inspection or audit pursuant to 
G.S. 183-502. 

(d) Submission of Financial Records. A permit- 
tee holding a Mixed Beverages permit under this 
Rule shall submit to the Commission for its re- 
view, on forms provided by the Commission, 
regular reports summarizing the information 
required to be maintained by the rule. These 
reports shall be submitted on a quarterly basis 
during the first year of operation as a licensed 
premises, and thereafter, on an annual basis or on 
a schedule set by the Commission. 

Statutory Authority G.S. 18B-207: 18B-1007. 

.0613 SPORTS CLUB: DEFINITIONS 

In interpreting the term sports club as contained 
in OS^ 183-1000(8), the following definitions 
shall apply: 

(1) "Equipment" means golf clubs, tennis 
rackets, golf and tennis balls, golf and 
tennis shoes, golf and tennis gloves, golf 
tees, golf and tennis clothing, and other 
items worn or utilized by the golfer or 
tennis player while engaged in the activi- 
ties of golf or tennis. 

12} 



"Golf course" means an 18 hole course 



13} 



designed and maintained for the play of 
the game of golf with a total tee to green 
length of at least 4,000 yards. 
"Gross receipts for alcoholic beverages" 
means all sales of beer, wine and spiritu- 



8:14 



NORTH CAROLINA REGISTER 



October 15, 1993 



1310 



PROPOSED RULES 



ous liquor including any mixers sold in 
mixed beverages. 

(4) "Receipts for food" means that portion of 
the establishment's sales which can be 
attributed to the sale of food and non- 
alcoholic beverages, which portion is to 
be determined in accordance with the 
provisions of 4 NCAC 2S .0519(13) and 

M. 

(5) "Restaurant" means restaurant as defined 
in OS, 186-1000(6) and 4 NCAC 2S 
.0105. 

(6) "Tennis court" means a 60 foot by 120 
foot surface composed of asphalt, con- 
crete, composite, grass or other similar 
material which is constructed and main- 
tained so as to permit the play of tennis 
on a regular basis and which is complete- 
ly enclosed by a chain link, particle 
board or other comparable fence. 

Statutory Authority G.S. 18B-207: 18B-1000(5a); 
18B-1008. 

.0614 SPORTS CLUB: REQUIREMENTS 
FOR RECEIVING AND HOLDING 
PERMITS 

To be eligible to receive and to hold ABC per- 
mits as a sports club, in addition to the require- 
ments imposed by G.S. 18B-1000(8), an establish- 
ment shall: 

(1) operate a golf course or a tennis court or 
both on its premises, and 

(2) derive at least 15% of its club activity 
fees on an annual basis from sources 
other than receipts for food. 

Statutory Authority G.S. 188-207; 18B-1000(5a); 
18B-1008. 

.0615 SPORTS CLUB: CLUB ACTIVITY 
FEES 

Club activity fees may only include revenues 
from the following: 

(1) membership dues; 

(2) court or greens fees paid by patrons for 
the privilege of using the golf course or 
the tennis court located on the sports 
club's premises; 

(3) receipts for food if the establishment 
operates a restaurant on its licensed 
premises; 

(4) equipment sales on the sports club's 
licensed premises; 

(5) golf cart rental fees; 



(6) teaching fees paid to golf or tennis pro- 
fessionals for lessons given on the sports 
club's premises; 

(7) equipment rental fees, if the equipment is 
rented for use on the sports club's golf 
course or tennis court; 

(8) entry fees for golf or tennis tournaments 
held on the sports club's premises; 

(9) revenue generated by the sale of tickets 
to golf or tennis tournaments held on the 
sports club's premises. 

Statutory Authority G.S. 18B-207; 18B-1000{5a); 
18B-1008. 

.0616 SPORTS CLUB: RECORD KEEPING 
REQUIREMENTS 

(a) Monthly Records. A sports club holding 
ABC permits issued by the Commission shall 
maintain full and accurate monthly records of the 
following: 

(1) amounts expended for the purchase of 
spirituous liquor from ABC stores and 
the quantity of spirituous liquor pur- 
chased; 

(2) amounts collected from the sale of 
mixed beverages and, by brand and 
container size, the quantity of spirituous 
liquor sold; 

(3) the quantity of spirituous liquor, by 
brand and container size, that was not 
sold but Is no longer on the premises 
due to stated reasons, such as breakage 
or theft; 

(4) amounts collected from the sale of malt 
beverages, fortified wine, and unforti- 
fied wine; 

(5) amounts collected from club activity 
fees, excluding receipts for food; 

(6) receipts for food. 

(b) The records required to be kept by this Rule 
shall be kept separate and apart from all other 
records maintained on the premises. 

(c) Records, including original invoices related 
to alcoholic beverages and mixed beverages, shall 
be maintained on the premises for three years and 
shall be open to inspection or audit pursuant to 
G.S. 18B-502. 

(d) A sports club holding ABC permits shall 
submit to the Commission for its review, on forms 
provided by the Commission, regular reports 
summarizing the information required by this 
Rule. These reports shall be submitted on a 
quarterly basis during the first year of operation 
with sports club ABC permits, and thereafter, on 



1311 



8:14 



NORTH CAROLINA REGISTER 



October 15, 1993 



PROPOSED RULES 



an annual basis or on a schedule set by the Com- 
mission. 

Statutory Authority G.S. 18B-207; 18B-1000(5a); 
18B-10O8. 

Notice is hereby given in accordance with G.S. 
150B-2L2 that the North Carolina Banking Com- 
mission intends to adopt rule cited as 4 NCAC 3F 
.0202. 

1 he proposed effective date of this action is 
January 1 , 1994. 

1 he public hearing will be conducted at 8:30 
a.m. on November 1 , 1993 at the North Carolina 
Banking Commission, 430 N. Salisbury Street, 
Dobbs Bldg., Room 6227, 6th Floor, Raleigh, 
North Carolina 27626. 

MXeason for Proposed Action: To implement the 
provisions of Article 16, Chapter 53 of the North 
Carolina General Statutes. 

(comment Procedures: Comments may be made 
orally or in writing and must be submitted no later 
than November 15, 1993. Please direct comments 
to T. Mercedes Oglukian, Special Counsel, 430 N. 
Salisbury Street, Dobbs Bldg., Box 29512, Ra- 
leigh, NC 27626-0512, Tel. (919) 733-3016, Fax 
(919) 733-6919. 

CHAPTER 3 - BANKING COMMISSION 

SUBCHAPTER 3F - LICENSEES UNDER 
MONEY TRANSMITTERS ACT 

SECTION .0200 - ADMINISTRATIVE 

.0202 PERMISSIBLE INVESTMENTS 

For the purposes of G.S. 53-193(4)(e). invest- 
ments that are approved by the Commissioner shall 
include the following: 

(1) Certificates of deposit or other debt 
instruments of financial depository insti- 
tutions organized under the laws of the 
United States or any state of the United 
States. 

(2) Bills of exchange or time drafts drawn 
upon and accepted by a financial deposi- 



tory institution organized under the laws 
of the United States or any state of the 
United States, otherwise known as 
bankers' acceptances, which are eligible 
for purchase by member banks of the 
Federal Reserve System . 

(3) Commercial Paper bearing a rating of 
one of the three highest grades by a 
nationally recognized organization which 
rates such securities and has been 
engaged regularly in the business of 
rating such securities for a period of not 
less than five years. 

(4) Interest-bearing bills, notes, bonds, 
debentures, or preferred stock traded on 
any national securities exchange or on a 
national over-the-counter market bearing 
a rating of one of the three highest grades 
by a nationally recognized investment 
service organization that has been 
engaged regularly in the business of 
rating corporate debt and equity issues 
for a period of riot less than five years. 

Statutory Authority G.S. 53-193; 53-206. 1. 

TITLE 10 - DEPARTMENT OF 
HUMAN RESOURCES 

jyiotice is hereby given in accordance with G.S. 
150B-21.2 that the Division of Facility Services 
(Medical Care Commission) intends to adopt rules 
cited as 10 NCAC 3C .2101 - .2105; amend 3C 
.0201 and 3D .1301 - .1302. 

1 he proposed effective date of this action is 
February 1, 1994. 

J. he public hearing will be conducted at 9:30 
a.m. on December 3, 1993 at the Nations Bank 
Markets, Inc. , 100 North Tryon Street, 6th Floor 
Assembly Room, Charlotte, NC 28255-0001. 

MXeason for Proposed Action: 
10 NCAC 3C .0201, .2101 - .2105 - To incorpo- 
rate recent legislative changes in hospital licensure 
rules that enable rural hospitals to participate in 
new federal programs. 

10 NCAC 3D .1301 - .1302 - To make the length 
of certification for Ambulance Attendants and 
Emergency Medical Technicians consistent with the 
certification period in HB 508 which was ratified 



8:14 



NORTH CAROLINA REGISTER 



October 15, 1993 



1312 



PROPOSED RULES 



effective June 8, 1993. 

i^omment Procedures: In order to allow Commis- 
sion members sufficient time to review and evalu- 
ate your written comments, submit your comments 
to Jackie Sheppard, APA Coordinator, DPS, P. O. 
Box 29530. Raleigh, NC 27626-0530, telephone 
(919) 733-2342 by November 15. 1993 but in no 
case, later than December 3, 1993. 

CHAPTER 3 - FACILITY SERVICES 

SUBCHAPTER 3C - LICENSEVG 
OF HOSPITALS 

SECTION .0200 - GENERAL 

.0201 CLASSIFICATION OF 
MEDICAL FACILITIES 

fa) The classification of "hospital" shall be 
restricted to facilities that provide as their primary 
functions diagnostic services and intensive medical 
and nursing care in the treatment of acute stages of 
illness. On the basis of specialized facilities and 
sers'ices available, each such hospital will be 
licensed as to the following medical types; 

(1) general acute care hospital; 
(5^ tub e rculosis; 

(2) (^ rehabilitation including orthopedics; 
hospital ; 
pediatric; 



{§) e y e . ear. nos e and throat; 

{6) physician's clinic — hospital; 

O) designated primary care hospital; 

(4) federally certified primary care hospi- 

taL 
Ext e nuating circumatancos will b e considered in 
continuing th e lic e ns e classification of a fhcilit^' 
licensed as a ho s pital prior to S e ptember 1. 1960. 

(h>) All other inpatient medical facilities accept- 
ing patients requiring skilled nursing ser\'ices but 
which are not operated as a part of any hospital 
within the above meaning shall be considered to 
operating as a nursing home and therefore are not 
subject to hospital licensure. 

(c) Each hospital applying for licensure will be 
classified in accordance with the determination of 
the Division of Facility Services. 

Statutory Authority G.S. 131E-76; 131E-79. 

SECTION .2100 - SUPPLEMENTAL RULES 

FOR THE LICENSURE OF 

DESIGNATED PRIMARY CARE 



HOSPITALS AND FEDERALLY 
CERTIFIED PRIMARY CARE HOSPFTALS 

.2101 SUPPLEMENTAL RUXES 

The Rules of this Section pertain only to formally 
designated Primary Care Hospitals or Federally 
Certified Primary Care Hospitals. The general 
requirements of this Subchapter shall apply to such 
hospitals except where they are specifically waived 
or modified by the rules of this Section. 

Statutory- Authority G.S. 131E-76: 131E-79. 

.2102 DEFINITIONS 

The following definitions shall apply throughout 

this Section, unless text otherwise clearly indicates 

to the contraryi 

(1) "Available" means provided directly by 

the Hospital or by written agreement with 

a qualified provider of the service within 

one hour. 

"Designated Priman,' Care Hospital" 
means a hospital designated by the North 
Carolina Office of Rural Health and 
Resource Development in accordance 
with N.C.G.S. 131E-76(6). 
"Federally Certified Primary Care Hospi- 
tal" means a hospital v>'hich has been 
designated and certified as a Federally 
Certified Rural Primary Care Hospital 
under the Essential Access Community 
Hospital Program administered through 
the North Carolina Office of Rural 
Health and Resource Development m 
accordance with PL. 101-239 and P.L. 
101-508. 



£2] 



13) 



(4) "Primars' Care Inpatient Services" means 
that the hospital provides acute care 
inpatient services appropriate to the level 
of ser\'ice at the facility up to a ma-xi- 
mum annual average daily census of 15 
patients per day. In addition, the hospital 
may also provide long term care in 
"sv>'ing bed" or distinct part status and 
psychiatric distinct part beds. 

Statutory Authority G.S 131E-76: 131E-79. 

.2103 LICENSURE APPLICATION 

An application from a hospital seeking to be 
licensed under the rules of this Section must be 



accompanied by written certification from the 
North Carolina Office of Rural Health and Re- 
source Development that the hospital is a Designat- 
ed Primary Care Hospital or a Federally Certified 



1313 



8:14 



NORTH CAROLINA REGISTER 



October 15, 1993 



PROPOSED RULES 



Primary Care Hospital. 

Statutory Authority G.S. 131E-76; 131E-79. 

.2104 FEDERALLY CERTIFIED PRIMARY 
CARE HOSPITAL 

(a) Ihe requirements of 10 NCAC 3C .0300 
through .2100 shall be waived for a hospital which 
the North Carolina Office of Rural Health and 
Resource Development certifies as a designated 
Federally Certified primary Care Hospital. 

(b) TTie Division reserves the right to conduct 
any validation survey or investigation of a specific 
complaint in hospitals which choose to be licensed 
as a Federally Certified Primary Care Hospital. 

Statutory Authority G.S. 131E-76; 121E-79. 

.2105 DESIGNATED PRIMARY CARE 
HOSPITALS 

The requirements of 10 NCAC 3C shall apply to 
Designated Primary Care Hospitals with the 
following modifications: 

(1) Autopsy facilities required in Rule .0704 
of this Subchapter are not required for a 
Designated Primary Care Hospital, pro- 
vided that the hospital has in effect a 
written agreement with another licensed 
hospital meeting Rule .0704 of this Sub- 
chapter for providing autopsy services. 

(2) Radiological services required in Section 
.0800 of this Subchapter are not required 
for Designated Primary Care Hospitals 
provided that the hospital has in effect a 
written agreement which makes radiologi- 
cal service available. 



£3} 



Emergency services required in Section 
.1000 of this Subchapter are not required 
for Designated Primary Care Hospitals. 
Medical staff of a Designated Primary 
Care Hospital shall assure that hospital 
personnel are capable of initiating life- 
saving measures at a first-aid level of 
response for any patient or person in 
need of such services. This shall in- 
clude: 



ia} 



£b} 



M 



Establishing protocols or agreements 
with any hospital providing emergency 



Initiating basic cardio-respiratory resus- 
citation according to the American Red 
Cross or American Heart Association 
standards; 

Availability of inter-veinous fluids and 
supplies required to establish inter- 



veinous access; and 
(d) Availability of first-line emergency 
drugs as specified by the medical staff. 

(4) Anesthesia services required in Section 
.1200 of this Subchapter are not required 
in Designated Primary Care Hospitals not 
offering outpatient surgery services. 

(5) Food services required in Section .1600 
of this Subchapter must be provided for 
inpatients of Designated Primary Care 
Hospitals either directly or made avail- 
able through contractual arrangements. 

Statutory Authority G.S. 131E-76; 131E-79. 

SUBCHAPTER 3D - RULES AND 

REGULATIONS GOVERNING 

AMBULANCE SERVICE 

SECTION .1300 - CERTIFICATION 

REQUIREMENTS FOR BASIC LIFE 

SUPPORT PERSONNEL 

.1301 CERTIFICATION REQUIREMENTS: 
AMBULANCE ATTENDANT 

(a) To become certified as an Ambulance Atten- 
dant, a person must successfully complete either of 
the following options: 

OPTION I 

(1) Be at least 18 years of age; 

(2) Pass a physical examination performed 
by a physician documenting the ability 
to function as an Ambulance Attendant; 

(3) Successfully complete, within one year 
prior to application, an Ambulance 
Attendant training course approved by 
the Office of Emergency Medical Ser- 
vices, following guidelines established 
by the Commission. When training 
was completed over one year prior to 
application, a person must submit evi- 
dence of completion of pertinent re- 
fresher training in emergency medicine 
taken in the past year for approval by 
the Office of Emergency Medical Ser- 
vices; 

(4) Pass a basic life support practical exam- 
ination administered by the Office of 
Emergency Medical Services; and 

(5) Pass either an Ambulance Attendant 
written examination, or an oral exami- 
nation at the option of the applicant, 
administered by the Office of Emergen- 
cy Medical Services; or 

OPTION II 



8:14 



NORTH CAROLINA REGISTER 



October 15, 1993 



1314 



PROPOSED RULES 



( 1 ) Be at least 1 8 years of age; 

(2) Pass a physical examination performed 
by a physician documenting the ability 
to function as an Ambulance Attendant; 

(3) Successfully complete, within one year 
prior to application, an Emergency 
Medical Technician training course 
approved by the Office of Emergency 
Medical Services, following guidelines 
established by the Commission. When 
training was completed over one year 
prior to application, a person must 
submit evidence of completion of perti- 
nent refresher training in emergency 
medicine taken in the past year for 
approval by the Office of Emergency 
Medical Services; 

(4) Pass a basic life support practical exam- 
ination administered by the Office of 
Emergency Medical Services; and 

(5) Complete an Emergency Medical Tech- 
nician written examination administered 
by the Office of Emergency Medical 
Services and achieve a minimum score 
of 55%. 

(b) Persons holding current certification equiva- 
lent to an Ambulance Attendant with another state 
where the training and certification requirements 
have been approved for reciprocity by the Office 
of Emergency Medical Services may become 
certified by: 

(1) Presenting evidence of such certifica- 
tion for verification by the Office of 
Emergency Medical Services; and 

(2) Meeting the criteria specified in Sub- 
paragraphs (a)(1) and (a)(2), of this 
Rule. 

(c) Certification obtained through reciprocity 
shall be valid for a period not to exceed the length 
of the current certification or a period not to 
exceed twe four years whichever is shorter. No 
certification shall be valid for a period exceeding 
twe four years. Persons who live in a state that 
borders North Carolina and are currently affiliated 
with an ambulance provider in North Carolina may 
continue to obtain a North Carolina certification 
through reciprocity if they continue to meet the 
recertification requirements in the state in which 
they reside. Persons who live in North Carolina 
and are currently certified in another state that 
borders North Carolina may continue to obtain a 
North Carolina certification through reciprocity if 
they continue to meet the recertification require- 
ments in the state in which they are certified. 



Persons who were previously certified in North 
Carolina and are currently certified in another state 
or with the National Registry of Emergency 
Medical Technicians, must present evidence of 
pertinent refresher training and skill evaluation 
prior to becoming certified through reciprocity. 

(d) To become recertified as an Ambulance 
Attendant a person must successfully complete 
either of the following options: 

OPTION I 

(1) A physical examination performed by a 
physician documenting the ability to 
function as an Ambulance Attendant; 

(2) An Ambulance Attendant refresher 
training program, approved by the 
Office of Emergency Medical Services, 
following guidelines established by the 
Commission; 

(3) A basic life support practical examina- 
tion administered by the Office of 
Emergency Medical Services; or 

OPTION II 

(1) A physical examination performed by a 
physician documenting the ability to 
function as an Ambulance Attendant; 

(2) A continuing education program taught 
or coordinated by an approved EMT 
Instructor, following guidelines estab- 
lished by the Commission; and 

(3) A basic life support skill evaluation(s) 
conducted under the direction of the 
approved EMT Instructor assessing the 
ability to perform the skills of an Am- 
bulance Attendant, approved by the 
Office of Emergency Medical Services, 
following guidelines established by the 
Commission. 

Statutory Authority G.S. 131 E-1 59(b); 1984 S.L., 
c. 1034. 

.1302 CERTIFICATION REQUIREMENTS: 
EMERGENCY MEDICAL 
TECHNICIAN 

(a) To become certified as an Emergency Medi- 
cal Technician, a person shall meet the following 
criteria: 

(1) Be at least 18 years of age; 

(2) Pass a physical examination performed 
by a physician documenting the ability 
to function as an Emergency Medical 
Technician; 

(3) Successfully complete, within one year 
prior to application, an Emergency 
Medical Technician training course 



1315 



8:14 



NORTH CAROLINA REGISTER 



October 15, 1993 



PROPOSED RULES 



approved by the Office of Emergency 
Medical Services, following guidelines 
established by the Commission. When 
training was completed over one year 
prior to application, a person must 
submit evidence of completion of 
pertinent refresher training in 
emergency medicine taken in the past 
year for approval by the Office of 
Emergency Medical Services; 

(4) Pass a basic life support practical 
examination administered by the Office 
of Emergency Medical Services; and 

(5) Pass an Emergency Medical Technician 
written examination administered by the 
Office of Emergency Medical Services. 

(b) Persons holding current certification 
equivalent to an Emergency Medical Technician 
with the National Registry of Emergency Medical 
Technicians or in another state where the training 
and certification requirements have been approved 
for reciprocity by the Office of Emergency 
Medical Services may become certified by: 

(1) Presenting evidence of such 
certification for verification by the 
Office of Emergency Medical Services; 
and, 

(2) Meeting the criteria specified in 
Subparagraphs (a)(1) and (a)(2) of this 
Rule. 

(c) Certification obtained through reciprocity 
shall be valid for a period not to exceed the length 
of the current certification or a period not to 
exceed two four years whichever is shorter. No 
certification shall be valid for a period exceeding 
twe four years. Persons who live in a state that 
borders North Carolina and are currently affiliated 
with an ambulance provider in North Carolina may 
continue to obtain a North Carolina certification 
through reciprocity if they continue to meet the 
recertification requirements in the state in which 
they reside. Persons who live in North Carolina 
and are currently certified in another state that 
borders North Carolina may continue to obtain a 
North Carolina certification through reciprocity if 
they continue to meet the recertification 
requirements in the state in which they are 
certified. Persons who were previously certified 
in North Carolina and are currently certified in 
another state or with the National Registry of 
Emergency Medical Technicians, must present 
evidence of pertinent refresher training and skill 
evaluation prior to becoming certified through 
reciprocity. 

(d) To become recertified as an Emergency 



Medical Technician a person must successfully 
complete either of the following options: 
OPTION I 

(1) A physical examination performed by a 
physician documenting the ability to 
function as an Emergency Medical 
Technician; 

(2) An Emergency Medical Technician 
refresher training program approved by 
the Office of Emergency Medical Ser- 
vices, following guidelines established 
by the Commission; 

(3) A basic life support practical examina- 
tion administered by the Office of 
Emergency Medical Services; or 

OPTION II 

(1) A physical examination performed by a 
physician documenting the ability to 
function as an Emergency Medical 
Technician; 

(2) A continuing education program taught 
or coordinated by an approved EMT 
Instructor, following guidelines estab- 
lished by the Commission; and 

(3) A basic life support skill evaluation(s) 
conducted under the direction of the 
approved EMT Instructor assessing the 
ability to perform the skills of an Emer- 
gency Medical Technician, approved by 
the Office of Emergency Medical Ser- 
vices, following guidelines established 
by the Commission. 

Statutory Authority G.S. 1 31 E- 159(b); 1984 S.L., 
c. 1034. 






* * 



J\otice is hereby given in accordance with G.S. 
150B-21.2 that the DHR/Division of Medical 
Assistance intends to adopt rule cited as 10 NCAC 
26H .0509. The existing Rule 10 NCAC 26H 
.0509 will be recodified as 10 NCAC 26H .0510. 

1 he proposed effective date of this action is 
January 1, 1994. 

1 he public hearing will be conducted at 1:30 
p.m. on November 16, 1993 at the North Carolina 
Division of Medical Assistance, 1985 Urns lead 
Drive, Room 132, Raleigh, NC 27626. 



8:14 



NORTH CAROLINA REGISTER 



October 15, 1993 



1316 



PROPOSED RULES 



Keason for Proposed Action: Rule necessary to 
establish reimbursement for Private Duty Nursing 
and Private Duty Nursing - Medical Supplies. 

i^omment Procedures: Written comments con- 
cerning this adoption must be submitted by Novem- 
ber 16, 1993, to: Division of Medical Assistance, 
1985 Umstead Drive, Raleigh, NC 27626 ATTN: 
Clarence Ervin, APA Coordinator Oral comments 
may be presented at the hearing. In addition, a 
fiscal impact statement is available upon written 
request from the same address. 

CHAPTER 26 - MEDICAL ASSISTANCE 

SUBCHAPTER 26H - REIMBURSEMENT 
PLANS 

SECTION .0500 - REIMBURSEMENT 
FOR SERVICES 

.0509 PRIVATE DUTY NURSING 

(a) Private duty nursing services are reimbursed 
at the lower of billed customary charges or an 
established hourly rate. The rate is derived from 
the average billed charges per hour in the base 
year and, beginning July l^ 1990. is adjusted 
annually by the percentage change in the rate for 
a skilled nursing visit by a home health agency. 

(h) EfFective October l_^ 1993, payment for 
Private Duty Nursing Medical Supplies, except 
those related to provision and use of DME, shall 
be reimbursed at the lower of a provider's billed 
customary charges or the maximum fee established 
for certified home health agencies. The maximum 
amount for each item is determined by multiplying 
the prevailing Medicare Part B allowable amount 
by 145 percent to account for the allocation of 
overhead costs and by 80 percent to encourage 
maximum efficiency. Fees will be established 
based on average, reasonable charges if a Medi- 
care allowable amount cannot be obtained for a 
particular supply item. The Medicare allowable 
amounts will be those amounts available to the 
Division of Medical Assistance as of July X of 
each year. This reimbursement limitation shall 
become effective in accordance with the provisions 
of G.S. 108-A-55(c). 

Authority G.S. 108A-25(b); 108A-54: 42 C.F.R. 
440.80. 

TITLE 11 - DEPARTMENT OF 



INSURANCE 

ISotice is hereby given in accordance with G.S. 
150B-21.2 that the N.C Department of Insurance 
intends to amend rule cited as 11 NCAC IIB 
.0611. 

1 he proposed effective date of this action is 
January 1 , 1994. 

I he public hearing will be conducted at 10:00 
a.m. on November 9, 1993 at the Dobbs Building, 
3rd Floor Hearing Room, 430 N. Salisbury Street, 
Raleigh. N.C. 27611. 

Jxeason for Proposed Action: To update and 
clarify the requirements for deposits and excess 
insurance for groups of employees that self-insure 
their workers ' compensation liabilities. 

(comment Procedures: Written comments may be 
sent to Ray Martinez at P.O. Box 26387, Raleigh, 
N. C. 27611. Oral presentations may be made at 
the public hearing. Anyone having questions 
should call Ray Martinez at (919) 733-5633 or 
Ellen Sprenkel at (919) 733-4529. 



CHAPTER 11 



FINANCIAL EVALUATION 
DIVISION 



SUBCHAPTER IIB - SPECIAL PROGRAMS 

SECTION .0600 - WORKERS' 
COMPENSATION SELF-INSURANCE 

.0611 DEPOSITS: BONDS: EXCESS 
INSURANCE - GROUPS 

(a) Each group shall deposit with the Commis- 
sioner, not later than the effective date of cover- 
age, cash or acceptable securities, or post a surety 
bond issued by a corporate surety, in an amount 
equal to ten percent of the group's total annual 
premium, but not less than thr ee six hundred 
thousand dollars ($300,000) ($600.000) nor to 
e xc ee d six hundr e d thouoand dollars ($600. (X)0) . 
For good caus e shown If it is actuarially required . 
the Commissioner meef shall require a surety bond 
or security deposit in excess of #ve six hundred 
thousand dollars ($500,000) ($600.000), actuarially 
commensurate with the risk of the group . 

(b) The amount of the security deposit or bond 
required shall be determined at least annually by 



1317 



8:14 



NORTH CAROLINA REGISTER 



October 15, 1993 



PROPOSED RULES 



the Commissioner based on data submitted by the 
group to the Commissioner. 

(c) Each group shall maintain specific excess 
insurance with a limit of at least efte five million 
dollars ($1,000,000) ($5.000.Q00) . Groups com- 
prising businesses with high risks of multiple 
injuries from single occurrences may be required 
by the Commis f iioncr to shall maintain higher 
limits^ actuarially commensurate with the risks 
involved . With respect to specific excess insur- 
ance, a group's retention shall be the lowest 
retention generally available for groups with 
similar exposures and annual premium; but the 
Commissioner may, in his discretion, shall require 
higher retention levels consistent with the group's 
claims experience and financial condition. 

Statutory Authority G.S. 58-2-40; 97-93. 

J\otice is hereby given in accordance with G.S. 150B-21.2 that the N. C. Department of Insurance intends 
to adopt rules cited as 11 NCAC 12 .0712 - .0714, . 1401 - . 1404. 

1 he proposed effective date of this action is January 1, 1994. 

I he public hearing will be conducted at 10:00 a. m. on November 9, 1993 at the Dobbs Building, 3rd Floor 
Hearing Room, 430 N. Salisbury Street, Raleigh, N.C. 27611. 

iveason for Proposed Action: 

II NCAC 12 .0712 - .0714 - Prescribe disclosure language for new coverages that go into effect January 
1. 1994. 

11 NCAC 12 .1401 - .1404 - To comply with G.S. 58-67-35(a)(6)d, which requires the Commissioner to 
adopt rules for HMO point-of-service plans. 

i^omment Procedures: Written comments may be sent to Rodney Finger at P.O. Box 26387, Raleigh, N. C. 
27611. Oral presentations may be made at the public hearing. Anyone having questions should call Rodney 
Finger (919) 733-5060 or Ellen Sprenkel at (919) 733-4529. 

CHAPTER 12 - LIFE AND HEALTH DIVISION 

SECTION .0700 - CREDIT INSURANCE AND CREDIT LIFE: ACCIDENT AND 

HEALTH INSURANCE 

.0712 TRUNCATED COVERAGE NOTICE 

The following notice must appear ]n bold print on the face of the individual policy or certificate of 
truncated credit insurance: 

NOTICE: The death benefit in this policy may not completely pay off your loan. 

If the term of your loan is longer than the term of this insurance, the 
death benefit is only payable if death occurs during the term of the 
insurance. Total disability benefits will not be paid for any period of 



8:14 NORTH CAROLINA REGISTER October 15, 1993 1318 



PROPOSED RULES 



total disability continuing after the termination date shown in the 
schedule. 

Statutory Authority G.S. 58-2-40: 58-57-20; 58-57-70. 

.0713 REVOLVING OR OPEN-END CREDIT 
INSURANCE 

The following notice must appear m bold print on the face of an individual policy or certificate of credit 
insurance written under G.S. 58-57-105 to address the effective date and termination date of coverage: 



NOTICE: Coverage will begin when your account has an open balance and will 

continue, subject to other provisions m this policy, as long as your 
account has an open balance. Coverage will end when your account 
does not have an open balance. Coverage will automatically resume 
when your account has another open balance, subject to the termina- 
tion provisions In this policy. 



Statutory Authority G.S. 58-2-40: 58-57-70; 58-57-105. 

.0714 AMOUNT OF CREDIT LIFE 
INSURANCE 

The phrase, "an amount equal to three monthly 
installments or the equivalent thereof", as used m 
G.S. 58-57-15(a)(l). means an amount that, when 
added to the scheduled amount of unpaid indebted- 
ness less any unearned interest or finance charges, 
does not exceed the initial total amount payable 
under the contract of indebtedness. 

Statutory Authority G.S 58-2-40; 58-57-1 5(a)(1); 
58-57-70. 

SECTION .1400- HMO: 
POENTT-OF-SERVICE 

.1401 APPLICABILITY AND SCOPE 

This Section applies to any HMO that, under 
G.S. 58-67-35(a)(6)d. o fibers coverage to its 
enrollees for health care services that are received, 
other than in an emergency, from: 

(1) Providers who are not employed by, 
under contract with, or otherwise 
affiliated with the HMO: or 

(2) Providers who are employed by, under 
contract with, or otherwise affiliated with 
the HMO in instances when such services 
are not received in compliance with the 
HMO's health care plan requirements. 

Statutory Authority G.S 58-2-40; 58-67-35; 
58-67-150. 



.1402 DEFINITIONS 

In this Section, unless 
indicates otherwise: 



m 



£2} 



£3} 



£4} 



15} 



i6i 



"Coinsurance" means the percentage of 
an allowed charge or expense for a 
covered health care service that an 
enrollee must pay. 

"Copayment" means a fixed dollar 
amount that an enrollee must pay each 
time a covered health care service is 
provided. 

"Deductible" means a specified amount 
of covered health care services, 
expressed in dollars, that must be 
incurred by an enrollee before the HMO 
will assume any financial liability for all 
or part of covered health care services. 



the context clearly 



"In-plan covered services" means covered 
health care services that are received 
according to the rules of the health care 
plan from providers employed by. under 
contract with, or approved in advance by 
the HMO; and means emergency health 
care services. 

"Out-of-plan covered services" means 
non-emergency, medically necessary 
covered health care services that are not 
received according to the rules of the 
health care plan, including services from 
affiliated providers that are received 
without the approval of the HMO. 
"Out-of-pocket expense" means a 
specified dollar amount of coinsurance 
incurred and payable by an enrollee for 
covered health care services in a 
specified period; but does not include 
deductible amounts, copayment amounts, 
charges in excess of the amount allowed 
by the HMO, amounts exceeding the 



1319 



8:14 



NORTH CAROLINA REGISTER 



October 15, 1993 



PROPOSED RULES 



I 



maximum benefits, nor any disallowed or 
noncovered expenses under the rules of 
the health care plan. 

(7) "Point-of-service product" means a 
feature in a health care plan that provides 
benefits for both in-plan covered services 
and out-of-plan covered services. 

(8) The definitions contained in G.S. 58-67-5 
are incorporated into this Section by 
reference. 



Statutory Authority 
58-67-150. 



G.S. 58-2-40; 58-67-35; 



\ 



> 



,1403 GE>fERAL REQUIREMEISTS 

No HMO shall provide any point-of-service 
product unless it complies with the following 
requirements and with G.S. 58-67-10(d)(l): 

(1) Where the covered benefits of a 
point-of-service product include 
coinsurance, the difiFerence in coinsurance 
rates between in-plan covered services 
and out-of-plan covered services shall not 
exceed 30 percentage points. 

(2) If the schedule of benefits for a 
point-of-service product imposes a 
deductible for in-plan covered services, 
the amount of any annual deductible per 
enrollee or per family for out-of-plan 
covered services may not exceed five 
times the amount of the corresponding 
annual deductible a pplied to in-plan 
covered services. 

("3) If the schedule of benefits for a 
point-of-service product does not include 
an annual deductible for in-plan covered 
services, the annual deductibles for 
out-of-plan covered services shall not 
exceed two thousand dollars ($2000) per 
enrollee and the family deductible may 
not exceed three times the amount of the 
corresponding annual deductible for the 
enrollee. 

(4) The portion of any charge for out-of-plan 
covered services to be applied to an 
annual deductible may be based on the 
amount the HMO would have recognized 
as an allowable charge had the service 
been rendered as an in-plan covered 
service. 

(5) If there is a lifetime maximum benefit for 
in-plan covered services, the amount of 
any annual and lifetime maximum limits 
for out-of-plan covered services shall not 
be less than one-half of the amount of 



(61 



01 
£8) 

19} 
(10) 



any annual and lifetime maximum limits 
for in-plan covered services. 
If a point-of-service product includes 
copayments for both in-plan covered 
services and out-of-plan covered services, 
the amount of the copayment for an 
out-of-plan covered service shall not 
exceed the copayment for an in-plan 
covered service by more than fifty dollars 
($50.00) or 100%. whichever is greater. 
A point-of-service product shall make all 
mandated benefits available in the form 
of in-plan covered services. 
Point-of-service products shall provide 
incentives, including financial incentives, 
for enroUees to use in-plan covered 
services. 



Any offered out-of-plan covered service 
must be available on an in-plan covered 
service basis. 

A HMO ofiFering a point-of-service 
product may exclude coverage for 



preventive health care services provided 
on an out-of-plan basis. 
Point-of-service products shall give 
enrollees the option to choose in-plan 
covered services or out-of-plan covered 
services each time such covered services 
are authorized, obtained, or rendered. 



Statutory Authority 
58-67-150. 



G.S 58-2-40; 58-67-35; 



.1404 DISCLOSURE REQUIREMENTS 

(a) Every explanation of benefits shall contain 
an explanation of coverage for out-of-plan covered 
services that allows each enrollee to determine his 
or her obligations with respect to such services. 

(b) All marketing materials, evidences of 
coverage, enrollee handbooks, and other materials 
given to enrollees by an HMO that off'ers a 
point-of-service product shall contain an 
explanation of the point-of-service product. The 
explanation shall include: 

(1) the method of reimbursement; 

applicable copayment and deductible 

amounts; 

any other uncovered costs or charges: 

the covered health care services that an 

enrollee may receive on an out-of-plan 

basis; and 

instructions for submittal of claims for 



£2} 

13} 
14} 



(5} 



out-of-plan covered services. 



Statutory Authority G.S 58-2-40; 58-67-35; 



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1320 



PROPOSED RULES 



58-67-150. 

I\otice is hereby' given in accordance with G.S. 
150B-21.2 that the N.C. Department of Insurance 
intends to amend rule cited as 11 NCAC 16 .0302. 

1 he proposed effective date of this action is 
January 1 , 1994. 

J. he public hearing will be conducted at 10:00 
a.m. on November 9, 1993 at the Dobbs Building, 
3rd Floor Hearing Room, 430 N. Salisbury Street, 
Raleigh. N.C. 27611. 

Ixeason for Proposed Action: To conform to 
statute changes made during the 1993 session of 
the General Assembly. 

i^omment Procedures: Written comments may be 
sent to Wblter James at P.O. Box 26387, Raleigh, 
N.C. 27611. Oral presentations may be made at 
the public hearing. Anyone having questions 
should call miter James (919) 733-3284 or Ellen 
Sprenkel at (919) 733-4529. 

CHAPTER 16 - ACTUARIAL SERVICES 
DIVISION 

SECTION .0300 - SMALL EMPLOYER 
GROUP HEALTH INSURANCE 

.0302 RESTRICTIONS ON PREMIUM 
RATES 

(a) Each class of business shall have its own rate 
manual. The rate manual will be used to: 

(1) Audit the actuarial certification with 
regards to the relationship of one em- 
ployer group to the others within a 
class; and 

(2) Determine compliance with the relation- 
ship of one class to the other classes. 

(h) The requirement in G.S. 58-50-130rb)(2) 
that within a class the premium rates charged 
during a rating period to small employers shall not 
vary from the index rate by more than 35 percent 
25% shall be met as follows: 

(1) The carrier shall calculate for each 
class of business, using the rate manual 
for that class, an index rate for each 
plan of benefits and for each small 



employer census within that class of 
business. 

(2) For each small employer within a given 
class of business, the carrier shall cal- 
culate the ratio of the premium rate 
charged the small employer during the 
rating period to the index rate for the 
census, plan of benefits, and class of 
business of that small employer calcu- 
lated in Subparagraph (1) of this Para- 
graph. 

(3) TTie ratio calculated in Subparagraph 
(2) of this Paragraph shall be between 
.65 and 1.35 .75 and 1.25 , inclusive. 

Other methods may be used if the results, using 
the method in this Paragraph, meet the require- 
ments of this Rule. 

(c) The requirement in G.S. 58-50- 130fb)(l) that 
the index rate for a rating period for any class of 
business shall not exceed the index rate for any 
other class of business by more than 25 percent 
12.5% shall be met as follows: 

(1) The carrier shall define a representative 
census of its business and a representa- 
tive actuarially equivalent plan of bene- 
fits. 

(2) The carrier shall calculate an index rate 
based upon Subparagraph ( 1 ) of this 
Paragraph for each class of business. 

(3) The carrier shall identify the class of 
business with the lowest index rate. 

(4) The ratio of the index rate calculated 
for each class of business in Subpara- 
graph (2) of this Paragraph to the low- 
est index rate identified in Subpara- 
graph (3) of this Paragraph shall be 
between 1.00 and +t35 1.125 . inclu- 
sive. 

Any change in the representative census or repre- 
sentative actuarially equivalent plan of benefits 
used in Subparagraphs (1) through (4) of this 
Paragraph shall be specifically documented and the 
test must be performed on both the previous and 
new census or actuarially equivalent plan of 
benefits at the time of change; and the results of 
both tests shall be disclosed within the annual 
actuarial certification filing. Other methods may 
be used if the results, using the method in this 
Paragraph, meet the requirements of this Rule. 

(d) The acceptability of a proposed rate increase 
for a small employer for health benefit plans 
issued on or after January 1, 1992, shall be deter- 
mined as follows: 

(1) Calculate a new business premium rate 
for the new rating period using the rate 



1321 



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October 15, 1993 



PROPOSED RULES 



manual, the actual census and plan of 
benefits for the small employer at the 
beginning of the new rating period. 

(2) Calculate a now business premium rate 
for the prior rating period using the rate 
manual, the actual census and plan of 
benefits for the small employer at the 
beginning of the prior rating period. 

(3) Divide Subparagraph (1) of this Para- 
graph by Subparagraph (2) of this 
Paragraph and multiply this quotient by 
the gross premium in eflFect at the 
beginning of the prior rating period. 
This product is the maximum renewal 
premium for the new rating period 
associated with G.S. 58-50- 130(b)(3)a 
and G.S. 58-50- 130(b)(3)c; 

(4) Subparagraph (3) of this Paragraph may 
be adjusted by a percentage of the gross 
premium in force before renewal. This 
percentage shall not exceed 15 percent 
per year prorated for the months 
elapsed between the previous and the 
new rating dates. 

(5) Multiply Subparagraph (3) of this Para- 
graph by one plus the percentage in 
Subparagraph (4) of this Paragraph. 

The maximum renewal gross premium is Subpara- 
graph (5) of this Paragraph if Paragraph (b) of this 
Rule is satisfied. If the resulting maximum renew- 
al gross premium calculated in Subparagraph (5) of 
this Paragraph does not satisfy Paragraph (b) of 
this Rule, then the maximum renewal gross premi- 
um shall be adjusted until Paragraph (b) of this 
Rule is satisfied. Other methods may be used if 
the results, using the method in this Paragraph, 
meet the requirements of this Rule. 

(e) The acceptability of a proposed rate increase 
for a small employer for health benefit plans 
issued before January 1, 1992, shall be determined 
as follows: 

(1) Calculate a new business premium rate 
for the new rating period using the rate 
manual, the actual census and plan of 
benefits for the small employer at the 
beginning of the new rating period. 

(2) Calculate a new business premium rate 
for the prior rating period using the rate 
manual, the actual census and plan of 
benefits for the small employer at the 
beginning of the prior rating period. 

(3) Divide Subparagraph (1) of this Para- 
graph by Subparagraph (2) of this 
Paragraph and multiply this quotient by 
the gross premium in eflFect at the 



beginning of the prior rating period. 
This product is the maximum renewal 
premium for the new rating period 
associated with G.S. 58-50- 130(b)(7)a 
and G.S. 58-50- 130(b)(7)h 
The maximum renewal gross premium in Subpara- 
graph (3) of this Paragraph is not subject to Para- 
graphs (b) and (c) of this Rule during a three-year 
transition period ending January 1, 1995. After 
January 1, 1995, the acceptability of a proposed 
rate increase for a small employer shall be based 
only on Paragraph (d) of this Rule. Other methods 
may be used if the results, using the method in this 
Paragraph, meet the requirements of this Rule. 

Statutory Authority G.S. 58-2-40; 58-50-1 30(h). 

TITLE 15A - DEPARTMENT OF 

ENVIRONMENT, HEALTH, AND 

NATURAL RESOURCES 

jy/otice is hereby given in accordance with G.S. 
150B-21.2 that the Department of Environment, 
Health, and Natural Resources, Division of Soil 
and Witer Conservation intends to adopt rules 
cited as 15A NCAC 6F .0001 - .0005. 

1 he proposed effective date of this action is 
February 1, 1994. 

1 he public hearings will be conducted on the 

following dates arui locations: 

7:00 pm 

Nov 8, 1993 

Vernon James Center 

Plymouth, NC 

7:00 pm 

Nov 15, 1993 

Clinton Civic Center 

414 Vhrsaw Road 

Clinton, NC 28328 

7:00 pm 

Nov 17. 1993 

Mitchell Community College 

Shearer Hall 

Statesville, NC 

7:00 pm 

Nov 22, 1993 

Asheville Middle School 

Auditorium 



8:14 



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October 15, 1993 



1322 



PROPOSED RULES 



Asheville, NC 

MXeason for Proposed Action: The NC Soil and 
Wjter Conservation Commission (SWCC) has 
prepared procedures and guidelines for two activi- 
ties associated with the Environmental Manage- 
ment Commission's (EMC) 1993 amendments to 
the Nondischarge Rule (15 A NCAC 2H .0200). 
The two activities in the procedures are: 

1. Establish the process by which an individ- 
ual may- become designated as a "Techni- 
cal Specialist" and sign the certification 
forms that must be submitted to the Divi- 
sion of Environmental Management by 
owners of confined animal operations. 

2. Establish the process that an owner of a 
confined animal operation must complete 
to receive a "certification " that the opera- 
tion meets the requirements previously 
established by the EMC. 

ne Soil and Witer Conservation Commission and 
the Local Soil and W2ter Conservation Districts 
are cooperating with the EMC by providing assis- 
tance to owners of confined animal operations in 
securing certification in order to be "deemed 
permitted". The SWCC procedure will not redefine 
any requirements established by the EMC for 
buffers, set-backs, size of operation, etc. 

(comment Procedures: All persons interested in 
these matters are invited to attend the public 
hearings. Oral presentation time allowance may 
be limited at the discretion of the hearing officer 
and comments must also be submitted in writing 
when longer than three minutes. Written com- 
ments are encouraged and may be presented at the 
public hearings or submitted to James Cummings, 
Division of Soil and Vhter Conservation, P.O. Box 
27687. Raleigh, NC 27611-7687. To request 
further information call (919) 733-2302. Mailed 
written comments must be postmarked by Novem- 
ber 22. 1993. 

IT IS VERY IMPORTANT THAT ALL INTEREST- 
ED AND POTENTIALLY AFFECTED PERSONS, 
GROUPS, BUSINESSES, ASSOCIATIONS. INSU- 
TUTIONS OR AGENCIES MAKE THEIR VIEWS 
AND OPINIONS KNOWN TO THE SOIL AND 
WATER CONSERVATION COMMISSION 
THROUGH THE PUBLIC HEARING AND COM- 
MENT PROCESS, WHETHER THEY SUPPORT 
OR OPPOSE ANY OR ALL PROVISIONS OF THE 
PROPOSED RULES THE COMMISSION MAY 



MAKE CHANGES TO THE RULES AT THE 
COMMISSION MEETING IF THE CHANGES 
COMPLY WITH as I50B-21.2(f). 

CHAPTER 6 - SOIL AND WATER 
CONSERVATION COMMISSION 

SUBCHAPTER 6F - PROCEDURES AND 
GUIDELINES TO IMPLEMENT THE 

NONDISCHARGE RULE FOR ANIMAL 
WASTE MANAGEMENT SYSTEMS 

.0001 PURPOSE 

This Subchapter describes the operating proce- 
dures and guidelines to implement the provisions 
of 15A NCAC 2H .0200 - Waste Not Discharged 
To Surface Waters ; for those provisions charged 
to the Soil and Water Conservation Commission in 
15A NCAC 2H .0217, hereinafter called the 
Nondischarge Rule for Animal Waste Management 
Systems. As the lead State agency for agricultural 
nonpoint source pollution control, the Soil and 
Water Conservation Commission, through these 
procedures and guidelines, will coordinate the 
efforts of the Soil and Water Conservation Dis- 
tricts to further the proper conservation and utiliza- 
tion of farm generated by-products (nutrients, 
wastes, compost, water) in connection with animal 
waste management systems and coordinate the 
Districts' efforts with those of the Environmental 
Management Commission and the Division of 
Environmental Management. 

Statutory Authority G.S 139-2: 139-4; 1438-294. 

.0002 DEFEVITIONS OF TERMS 

The terms used in this Subchapter shall be as 
defined in OS, 139-4; 143-215.74; 143B-294; 
15A NCAC 2H .0203; 15A NCAC 6E .0002; and 
as follows: 



LU 



"Agronomic Rates " means those amounts 



12} 



of animal waste or compost to be applied 
to lands as contained in the nutrient 
management standard of the USDA Soil 
Conservation Service Technical Guide 
Section IV or as recommended by the 
North Carolina Department of Agricul- 
ture and the North Carolina Cooperative 
Extension Service at the time of certifica- 
tion by the Technical Specialist for the 
animal waste management plan. 
"Certification" means the certification 
required in the Nondischarge Rule for 
Animal Waste Management Systems 
(15A NCAC 2H .0217). 



1323 



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NORTH CAROLINA REGISTER 



October 15, 1993 



PROPOSED RULES 



(3) "DEM" means the Division of Environ- 
mental Manasement, Department of 
Environment. Health and Natural Re- 
sources, and the agency to receive the 
certification forms and responsible for 
enforcement of I5A NCAC 2H .0200. 

(4) "Design Approval Authority" means that 
authority granted by the Commission to 
an individual to certify that a BMP or the 
system of BMPs for waste management 
has been designed to meet the standards 
and specifications of practices adopted by 
the Commission. 

(5) "Installation Approval Authority" means 
that authority granted by the Commission 
to an individual to certify a BMP or 
system of BMPs for waste management 
has been installed to meet the standard of 
practices adopted by the Commission. 

(6) "Technical Specialist" means an individu- 
al designated by the Commission to 
certify an entire or portion of an animal 
waste management plan. 

Statutory Authority G.S. 139-4; 143B-294. 

.0003 REQUIREMENTS FOR 

CERTIFICATION OF WASTE 
MANAGEMENT PLANS 

(a) Owners of Animal waste management sys- 
tems are required in 15A NCAC 2H .0217(a)(1) to 
obtain certification that the system will properly 
collect, treat, store, or apply animal waste to the 
land such that no discharge of pollutants occurs to 
surface waters of the state by any means except as 
a result of a storm event more severe than the 25- 
year, 24-hour storm as required in 15A NCAC 2H 
.0203(3). 

(b) The certification is to be made by a Techni- 
cal Specialist designated pursuant to this Subchap- 
ter, and will confirm that the best management 
practices (BMPs) contained in the animal waste 
management plan meet applicable minimum stan- 
dards and specifications. BMPs in an existing 
system are not required to meet current standards 
and specifications as established by the Commis- 
sion as long as the system is certified to be non- 
discharging as required in 15A NCAC 2H 
.0203(3). 

(c) More than one Technical Specialist may be 
consulted for the design of BMPs and installation 
of BMPs. A Technical Specialist must certify the 
entire animal waste management plan as installed. 

(d) Upon receiving a certification from a 
Technical Specialist, the owner must submit a copy 



of the certification to DEM and a copy of both the 
certification and the waste management plan to the 
District in which the system is or is to be located. 

(e) The District shall review the waste 
management plan and, within 30 days of receipt of 
the plan, notify the owner, DEM and the Division 
if the District does not concur that the certification 
was signed by an approved Technical Specialist 
and that the waste management plan satisfies the 
purpose of proper conservation and utilization of 
farm generated animal by-products. If the 
District. upon review. concurs with the 
certification, no further action is required. 

(f) The District shall maintain a complete copy 
of all animal waste management plans and the 
accompanying certification form. 

(g) If the District does not concur with the 
authority of the approving Technical Specialist or 
the waste management plan, and if either the 
owner or the DEM requests that the District 
reconsider its decision, the District shall review its 
decision and within 45 days of the request, notify 
the owner, DEM, and the Division of the 
District's final decision. The District is 
encouraged to utilize other technical specialists, 
local agricultural agencies and disinterested 
agriculmral producers in reconsidering its initial 
decision. If the District fails to act within 45 days 
on a request for reconsideration, the District's 
initial decision shall become final. 

(Ii) An owner not receiving concurrence from 
the District may request that the Commission 



mediate a dispute over concurrence. 

(i) The review process of the District does not 
abrogate the responsibilities of the owner to obtain 
a certification and of DEM requirements for an 
individual nondischarge permit. 

{]} An owner who does not obtain a certification 
is not deemed permitted pursuant to G.S. 143- 
215.19(d) and must apply for an individual permit 
from the Division of Environmental Management. 
Nothing in these Rules prohibits permit appeal 
rights pursuant to the rules of the Environmental 
Management Commission. 

(k) A proposed modification of an animal waste 
management plan requires approval by a Technical 
Specialist. 

(1) Any modifications made in the system as a 
result of changes in the operation such as types 
and numbers of animals, equipment, or crops, 
must be in accordance with the BMP standards and 
specifications approved by the Commission and in 
effect at the time of the modification. 

(m) A change in the cropping pattern as a result 
of weather-caused delays after application of 



8:14 



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October 15, 1993 



1324 



PROPOSED RULES 



animal waste shall not require the owner to obtain 
a new certification as long as the owner followed 
the certified waste management plan application 
rates and no discharge occurs to surface waters. 

(n) The certifying Technical Specialist and the 
District are not required to spot check or otherwise 
assure proper maintenance and operation of an 
animal waste management system installed to meet 
the DEM certification requirements. Enforcement 
of the Nondischarge Rule for Animal Waste 
Management Systems (15A NCAC 2H .0217) shall 
remain the responsibility of DEM. 

Statutory Authority G.S. 139-4; 1438-294. 

.0004 APPROVED BEST 

MANAGEMENT PRACTICES 
(BMPs) 

(a) The Commission will approve a list of BMPs 
that are acceptable as part of an approved animal 
waste management system . The list of BMPs will 
be approved annually fby August JJ and revised as 
needed during the year by the Commission. 

{bl As required by DEM in \5\ NCAC 2H 
.0217. a BMP or system of BMPs designed and 
installed for an animal waste management plan 
must either: 

meet the minimum standards and 



m 



12} 



specifications of the US Department of 
Agriculture Soil Conservation Service 
Technical Guide. Section IV or 
minimum standards and specifications 
as otherwise determined by the 
Commission; or 

receive an approved individual 
nondischarge permit as required for the 
animal waste management system . 
BMPs approved for use in the 
Agriculture Cost Share Program for 
Nonpoint Source Pollution Control are 
hereby approved for these purposes. 

(c) Land application BMPs following the 
nutrient management standard contained in the 
Section IV of the SCS Technical Guide or as 
recommended by the North Carolina Department 
of Agriculture and the Cooperative Extension 
Service are acceptable. In cases where agronomic 
rates are not specified in the Nutrient Management 
Standard for a specific crop or vegetative type, 
application rates may be determined using the best 
judgement of the certifying Technical Specialist 
after consultation with NCDA or CES. 

(d) Exemptions from the minimum buffer 
requirements for animal waste storage and 
treatment facilities and animal concentration areas 



are acceptable if no practical alternative exists and 
the BMP installed as an equivalent control meets 
the requirements for Nondischarge except as a 
result of a storm event more severe than the 25- 
year. 24-hour storm. 

Statutory Authority G.S. 139-4; 143B-294. 

.0005 TECHNICAL SPECIALIST 

DESIGNATION PROCEDURE 

(a) The Commission may designate individuals 
or groups of individuals as Technical Specialists. 
to assist owners m animal waste management plan 
development and certification. No rights are 
afforded to Technical Specialists by this 
designation. 

(h) Design or Installation approval authority of 
Technical Specialists may be for specific BMPs or 
a system of BMPs to be applied to complete an 
entire or a portion of an animal waste management 
plan. 

(c) The following persons are Technical 
Specialists: 

(1) Individuals who have been assigned 
Design and Installation approval 
authority by the USDA, Soil 
Conservation Service, the NC 
Cooperative Extension Service or the 
NC Department of Agriculture: 
Professional engineers subject to "The 
North Carolina Engineering and Land 
Surveying Act" as rewritten by Session 
Laws 1975. c.681. s. 1. and recodified; 
and 

Individuals designated by the 
Commission. 



121 



13} 



(d) TTiose individuals not designated in 
Subparagraph (c)(1) or £2j of this Rule must app ly 
and receive recommendation by two-thirds vote of 
the members present at a scheduled meeting of the 
Commission, or of a committee established for this 
purpose, based on the minimum qualifications as 
established by the Commission. A copy of the 
minimum requirements for skill and experience 
will be available at the District field office. The 
NPS Section of the Division will keep on file all 
application forms and provide a list of these 
Technical Specialists approved by the Commission. 
or its committee to all Districts. Tlie list will 
designate the BMPs or system of BMPs for which 
the Technical Specialist has received design or 
installation certification a pproval . 

(e) The Commission, or a committee established 
for this purpose, shall meet quarterly as long as 
there are Technical Specialist applications to 



1325 



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NORTH CAROLINA REGISTER 



October 15, 1993 



PROPOSED RULES 



review. An individual must provide to the NPS 
Section of the Division an application (provided by 
the NPS Section) and supporting documentation by 
the second Wednesday of the first month of a 
quarter in order to have an application reviewed 
for designation that quarter. 

(f) The Commission or its committee, may 
rescind the authority of a Technical Specialist for 
a specific BMP or aH BMPs upon receipt of a 
written complaint and a vote of two-thirds of the 
members in attendance at a scheduled meeting. 

Statutory Authority G.S. 139-4; 143B-294. 

TITLE 21 - OCCUPATIONAL 
LICENSING BOARDS 

niotice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Board of 
Pharmacy intends to adopt rules cited as 21 NCAC 
46 . 1606 - 1607 and . 2306. 

1 he proposed effective date of this action is 
March 1. 1994. 

1 he public hearing will be conducted at 2:00 
p.m. on November 30, 1993 at the Institute of 
Pharmacy, 109 Church Street, Chapel Hill, North 
Carolina. 

Jxeason for Proposed Action: 
21 NCAC 46 .1606 - To require a personal ap- 
pearance at the Board office prior to issuance of 
any original pharmacy permit or device-dispensing 
permit, or prior to approval for dispensing by a 
nurse or physician 's assistant. 
21 NCAC 46 .1607 - To set out requirements for 
all out-of-state pharmacies that ship, mail, or 
deliver in any manner a dispensed legend drug into 
this State. 

21 NCAC 46 .2306 - To prohibit the selling, use 
for commercial purposes, or transfer of informa- 
tion in patient pharmacy records, except as permit- 
ted under 21 NCAC 46 . 1806 and . 2502(h). 

Lyomment Procedures: Persons wishing to present 
oral data, views or arguments on a proposed rule 
or rule change, may file a Notice with the Board 
at least 10 days prior to the public hearing at 
which the person wishes to speak. Comments 
should be limited to 10 minutes. The Board's 
address is RO. Box 459, Carrbow, NC 27510- 



0459. Any person may file written submission of 
comments or argument at any time up to and 
including December 2, 1993. 

CHAPTER 46 - BOARD OF 
PHARMACY 

SECTION .1600 - LICENSES 
AND PERMITS 

. 1 606 REQUIREMENT OF 

PERSONAL APPEARANCE 

Prior to issuance of any original permit or device 
dispensing permit, or prior to approval for dis- 
pensing by a nurse or physician's assistant, the 
following persons must appear personally at the 
Board office on the first Monday of the month, the 
Monday before the monthly Board meeting, or 
such other time as scheduled with the Board's 
staff: 

(1) the pharmacist-manager for the applicant 
pharmacy; 

(2) the person in charge of the device-dis- 
pensing permit; 

(3) the nurse applying for approval for dis- 
pensing and the supervising pharmacist; 
and 

(4) the physician's assistant a pplying for 
approval for dispensing and the supervis- 
ing pharmacist. 

Statutory Authority G.S 90-18.1; 90-18.2; 90- 
85. 3(a), (r); 90-85. 6; 90-85. 21; 90-85. 22. 

.1607 OUT-OF-STATE PHARMACIES 

(a) In addition to the requirements of 21 NCAC 
46 .1601 and .1603 z 1605. out-of-state pharma- 
cies that ship, mail, or deliver in any manner a 
dispensed legend drug into this State must comply 
with the following: 

(1) Pay a fee of Two Hundred Fifty Dol- 
lars ($250.00) for original registration 
and thereafter pay a fee of one hundred 
twenty-five dollars ($125.00) for annual 
renewal of registration; 

(2) Maintain, m readily retrievable form, 
records of prescription drugs dispensed 
to North Carolina residents; 

(3) Supply all information requested by the 
Board in carrying out the Board's re- 
sponsibilities under the statutes and 
regulations pertaining to out-of-state 
pharmacies; 

(4) Comply with all statutory and regulato- 
ry requirements of the State of North 



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NORTH CAROLINA REGISTER 



October 15, 1993 



1326 



PROPOSED RULES 



Carolina for dispensing prescriptions, 
including labeling, record keeping, and 
drug product selection; 

(5) Develop and provide the Board with a 
policy and procedure manual that sets 
forth: 

(A) normal delivery protocols and times: 

(B) the procedure to be followed if the 
patient's medication is not available at 
the out-of-state pharmacy, or if deliv- 
ery will be delayed beyond the normal 
delivery time; 

(C) the procedure to be followed upon 
receipt of a prescription for an acute 
illness, which policy shall include a 
procedure for delivery of the medica- 
tion to the patient from the out-of- 
state pharmacy at the earliest possible 
time (such as courier delivery), or an 
alternative that assures the patient the 
opportunity to obtain the medication 
at the earliest possible time; and 

(D) the procedure to be followed when the 
out-of-state pharmacy is advised that 
the patient's medication has not been 
received within the normal delivery 
time and that the patient is out of 
medication and requires interim dos- 
age until mail prescription drugs 
become available: 

(6) Maintain a pharmacist-manager who has 
a valid license to practice pharmacy in 
North Carolina. The pharmacist-man- 
ager must comply with all statutory and 
regulatory requirements of the State of 
North Carolina, including 21 NCAC 46 
.2502. If at any time the pharmacist- 
manager so designated shall leave the 
employment of the pharmacy, the phar- 
macy shall promptly notify the Board 
and designate another pharmacist cur- 
rently licensed in North Carolina as 
pharmacist-manager; 

(7) Disclose the location, names, and titles, 
of all principle corporate officers, 
partners, or owners of the pharmacy. 
Disclose the names and license numbers 
of all pharmacists and, if available, the 
names and license or registration num- 
bers of all supportive personnel em- 
ployed by the out-of-state pharmacy 
who deliver, dispense, or distribute, by 
any method, prescription legend drugs 
to an ultimate user in this State. A 
report containing this information shall 



18} 



lAl 



m 



19} 



be made on an annual basis and within 
thirty days after each change of office, 
corporate officer, partnership, owner, 
or pharmacist; 

Submit evidence of possession of a 
valid license, permit, or registration as 
a pharmacy in compliance with the laws 
of the state in which the pharmacy is 
located. Such evidence shall consist of 
one of the following: 
a copy of the current license, permit. 
or registration certificate issued by the 
regulatory or licensing agency of the 
state in which the pharmacy is locat- 
ed; or 

a letter from the regulatory or licens- 
ing agency of the state in which the 
pharmacy is located certifying the 
pharmacy's compliance with the 
pharmacy laws of that state; 
Designate a resident agent in North 
Carolina for service of process. Any 
such out-of-state pharmacy that does 
not so designate a registered agent shall 
be deemed to have appointed the Secre- 
tary of State of the State of North Caro- 
lina to be its true and lawful attorney 
upon whom process may be served. 
All legal process in any action or pro- 
ceeding against such pharmacy arising 
from shipping, mailing or delivering 
prescription drugs in North Carolina 
shall be served on the resident agent. 
In addition, a copy of such service of 
process shall be mailed to the out-of- 
state pharmacy by certified mail, return 
receipt requested, at the address of the 
out-of-state pharmacy as designated on 
the application for a permit filed with 
the Board. Any such out-of-state phar- 



macy which does not obtain a permit m 
this State, shall be deemed to have 
consented to service of process on the 
Secretary of State as sufficient service; 

(b) The facilities and records of such out-of-state 
pharmacy shall be subject to inspection by the 
Board; provided however, the Board may accept in 
lieu thereof satisfactory inspection reports by the 
licensing entity of the state in which the pharmacy 
is located. 

(c) When there is a conflict between stamtes or 
rules of North Carolina and those of the state in 
which the pharmacy is located, the more stringent 
of the two shall apply. 

(d) Any person who ships, mails or delivers 



1327 



8:14 



NORTH CAROLINA REGISTER 



October 15, 1993 



PROPOSED RULES 



prescription drugs to North Carolina residents 
from more than one out-of-state pharmacy shall 
obtain a separate North Carolina out-of-state 
pharmacy license for each pharmacy. 

(e) An out-of-state pharmacy license shall expire 
on December 31 of each year. 

Statutory Authority G.S. 90-85.6; 90-85. 21 A; 90- 
85.26; 90-85.28; 90-85.29; 90-85.30; 90-85.32. 

SECTION .2300 - PRESCRIPTION 
INFORMATION AND RECORDS 

.2306 CONFIDENTIALITY OF PATIENT 
PHARMACY RECORDS 

Information in patient pharmacy records shall not 
be sold, used for commercial purposes or trans- 
ferred, except as permitted under 21 NCAC 46 
■ 1806 and .250201) . 

Statutory Authority G.S. 90-85.6; 90-85.36. 

jyi otice is hereby given in accordance with G.S. 
150B-21.2 that the Therapeutic Recreation Certifi- 
cation Board intends to adopt rules cited as 21 
NCAC 65 .0001 - .0013. 

1 he proposed effective date of this action is 
January 1 , 1994. 

1 he public hearing will be conducted at 10:00 
a.m. on November 17, 1993 at the Durham Re- 
gional Hospital, Public Auditorium, 3643 N. 
Roxboro St. , Durham, N. C. 27704. 

MXeason fiyr Proposed Action: For enactment of 
Chapter 90C Therapeutic Recreation Personnel 
Certification Act and the establishment of the TRC 
Board. 

l^omment Procedures: All v^ritten comments must 
be submitted to Becky Garrett, CTRS/TRS. Execu- 
tive Director TRCB, P. O. Box 67, Saxapahaw, NC 
27340, up to and including November 17, 1993. 
Written comments submitted after the deadline will 
not be considered. 

CHAPTER 65 - THERAPEUTIC 
RECREATION CERTIFICATION BOARD 



.0001 NAME - SHORT TITLE 

The North Carolina State Board of Therapeutic 
Recreation Certification shall be recognized as the 
Therapeutic Recreation Certification Board 
(TRCB). 

Statutory Authority G.S. 90C-4(a). 

.0002 EXECUTIVE DIRECTOR 
QUALIFICATIONS 

The Executive Director, an Independent Contrac- 
tor hired by TRCB. shall not be a member of the 
Board, will be certified by TRCB as a Therapeutic 
Recreation Specialist, hold a Master's degree or 
higher in Therapeutic Recreation, and have two to 
four years of progressive and responsible experi- 
ence in the field of Therapeutic Recreation. 

Statutory Authority G.S. 90C-5(j); 90C-6(4); 
90C-7. 

.0003 OFFICERS, EXECUTIVE 
COMMITTEE 

The oflficers of TRCB. (Chair. Vice-Chair. 
Secretary) and the Executive Director (ex-officio) 
shall be considered the Executive Committee and 
shall be given the authority to carry out business 
deemed necessary between regularly scheduled 
meetings of TRCB. 

Statutory Authority G. S. 90C-5(h). 

.0004 PROFESSIONAL CONDUCT 
COMMITTEE 

A Professional Conduct Committee consisting of 
a minimum of three certified practitioners (mini- 
mum two TRS's). will be appointed by TRCB for 
the purpose of TRCB investigating any suspected 
violations of G.S. 90C. Upon verbal or written 
notification of suspected violations of any provi- 
sions of G.S. 90C. TRCB will refer the same to 
the Professional Conduct Committee for investiga- 
tion, fact finding and recommendations. Upon 
completion of the investigation the Professional 
Conduct Committee will report the findings of the 
investigation and any recommendations for disci- 
plinary action to the TRCB for decision and 
enforcement. 

Statutory Authority G.S. 90C-6(8). 

.0005 MEETINGS 

(a) The Board shall conduct two annual reviews 
of applicants for certification within one month of 
application deadline. 



8:14 



NORTH CAROLINA REGISTER 



October 15, 1993 



1328 



PROPOSED RULES 



(b) The Board may hold additional announced 
business meetings each year, to conduct business 
of the TRCB. 

(c) TRCB members will be sent written notice 
30 days prior to meetings. 

(d) A request for an excused absence should be 
made to the Executive Director a minimum of two 
weeks or \A days in advance of the meeting. If a 
member of TRCB has more than one unexcused 
absence in a calendar year their resignation and a 
replacement by appointment will be requested. 

Statutory Authority G. S. 90C-5(i). 

.0006 EXEMPTIONS (EXPIRED MARCH 1, 
1991) 

It is the interpretation of the Board under G.S. 
90C-9 that other options, TRS, G.S. 
90C-9(l))(2)(3) for TRS certification and TRA 
certification. G.S. 90C-9(c)(2)(3)(4)(5) expired as 
e.xemptions on March j_j 1991. 

Statutory Authority G.S 90C-9; 90C-16. 

.0007 RECIPROCITY' 

(a) TRCB will certify without examination any 
person currently certified as a CTRS or a CTRA 
by the National Council for Therapeutic Recreation 
Certification (NCTRC) when written evidence, 
with current expiration date, is provided to support 
a TRCB application presented. 

(b) Anyone who is currently registered, certified 
or licensed by another state may apply for 



certification by TRCB by the reciprocity procedure 
with evidence that they meet current standards of 
G.S. 90C. 

Statutory Authority G.S. 90C-15. 

.0008 ACADEMIC - TRS EXAMINATION 

(a) TRCB shall provide to all applicants for 
certification as a Therapeutic Recreation Specialist. 
(TRS). a written examination at least once a year. 

(b) A national examination for Therapeutic 
Recreation Specialists administered by Educational 
Testing Service (ETS) will be used to evaluate the 
qualifications of applicants for certification. The 
e.xam shall be given in a central geographic area 
within the state. 

(1 > Qualifications: In order to qualify to 

take the examination candidates must 

meet the following requirements: 

(A) Candidates must present evidence 

(Official Transcripts) of a 

baccalaureate degree or higher from 



an accredited college or university 
with a major in therapeutic recreation 
or a major in recreation and an 
option/emphasis in therapeutic 
recreation. 

(B) Coursework must reflect a minimum 
of three courses that the title, course 
description and course outline reflect 
recreation content. 

(C) Coursework must reflect a minimum 
of three courses that the title, course 
description and course outline reflect 
therapeutic recreation content. 

(D) Supportive course work is to include 
a minimum of fS semester or 27 
quarter hours from three of the 
following six areas: psychology, 
sociology, physical/biological science, 
special education, human services, 
and/or adapted physical education. 
Effective January 1995. Supportive 
coursework. must include a minimum 
of three semester/quarter hours of 
anatomy, three semester/quarter of 
physiology, three semester/quarter of 
abnormal psychology and three 
semester/quarter hours in human 
growth and development. 

(E) Candidates must have completed a 
360-hour. 10-week internship or field 
placement experience in a clinical, 
residential. or community-based 
therapeutic recreation program under 
an agency supervisor who is currently 
certified by TRCB and NCTRC. 

(2) Passing requirements, reporting of 
scores, retaking the exam, cancellations 
and review of the exam by unsuccessful 
applicants will be conducted according 
to the rules established by ETS. 



Statutory Authority G. S. 
90C-9c(4). 



90C-9b(l)(2)(4); 



.0009 PROVISIONAL TRS 

Upon receipt of an application demonstrating 
compliance with the academic requirements each 
candidate will receive a letter allowing the use of 
the Title. Provisional Therapeutic Recreation 
Specialist (P-TRS) until the results of the exam are 
known. If the candidate does not pass the 
examination the use of Provisional TRS is no 
longer permitted. 

Statutory Authority G. S. 90C-9d. 



1329 



8:14 



NORTH CAROLINA REGISTER 



October 15, 1993 



PROPOSED RULES 



,0010 CERTIFICATION FEES 

(a) An additional fee will be charged by the 
Educational Testing Service based on the cost of 
administration of the examination: the fee will be 
payable to ETS. 

(h) A biannual Communications fee of fifteen 
dollars ($15.00) will be charged by TRCB to cover 
expenses for an annual report, newsletters, and 
directory to be sent to all those certified. The fee 
will be collected in the year that certification 
renewal is due. 

Statutory Authority G.S. 90C-10. 



.0011 CERTIFICATE RENEWALS (EFFECTIVE JULY 1, 1995) 

(a) Continuing Professional Education/Experience Requirements: During the two year certification period. 
Continuing Education and Continuing Professional Experience will be required for certification renewal . 
Candidates for Certification Renewal as a TRS have a choice from two of three options to earn a minimum 
of 40 points to renew their certification. Candidates for Certification as a TRA must accrue their points 
from Professional Experience and Continuing Education options. The options, their definitions and their 
point values are listed in this Paragraph . 

Option #1: Professional Experience (20 points) 
Option #2: Continuing Education (20 points) 
Option ^3: Examination (TRS Only) (40 points) 

Component Description Point Value 

Professional a minimum of 20 points (10 per year) 

Experience 144 hours (72 

hours per year) 

Continuing 4 CEU's (2 CEU's. 20 20 points (10 per year) 

Education contact hours annually) 

Examination passing score on TRS 40 points 

(TRS Only) certification exam 

(b) Professional Experience Component: If this component is selected to complete for renewal 
requirements, a minimum of 144 hours of therapeutic recreation experience must be earned within the two 
year certification period. The hours can be accumulated through the performance of the following 
professional roles. 

(1) Direct service deliverer - delivers service directly to clients or groups of clients as a therapeutic 
recreation specialist or a therapeutic recreation assistant by performing assessments, developing 
individual programs and treatment plans, documenting the assessments and interventions, working 
on an interdisciplinary team, performing outreach activities, etc. 

(2) Supervisor ; supervises therapeutic recreation personnel in the direct delivery of service to 
clients. 

(3) Administrator ; administers a department or a division which includes therapeutic recreation. 

(4) Educator - teaches courses or a program in therapeutic recreation. 

(5) Consultant ; performs consulting services in therapeutic recreation for organizations, educational 
institutions, agencies or corporations. 

(6) Volunteer - volunteers services performed in any of the various roles described in Subparagraphs 
(b)(1) through (b)(5) of this Rule. 

(7) Professional Service/ Paid or Volunteer ; includes professional boards, councils, legislative work. 



8:14 NORTH CAROLINA REGISTER October 15, 1993 1330 



PROPOSED RULES 



standards development, curriculum development, etc., as this service relates to therapeutic 
recreation. 
(8) Student ; participates in internships or supervised in-service education and training. 

(c) Continuing Education Component: The continuing education component includes a wide range of 
continuing education activities that are typically available to Therapeutic Recreation Specialists and 
Therapeutic Recreation Assistants. Continuing Education Points (CEP's) are measured according to the 
equivalency of an educational contact hour (50 minutes of actual classroom/instructional time, excluding 
registration time and breaks). Continuing Eklucation Units (CEU's) will also be recognized and will be 
translated into CEP's as follows: 

iii 1 CEP = 1 contact hour = 0.1 CEU 

{2} 10 CEP's = 10 contact hours = 1.0 CEU 

(d) CEP's can be accumulated [n one or several of three categories: 

(1) continuing education courses and experiences, or 

(2) academic courses, or 

(3) professional publications and presentations. 
Each of these three is explained in this Rule. 

(e) Continuing Education Courses and Experiences such as symposia, seminars, etc. are accepted if they 
are approved by a professional therapeutic recreation organization at the local, state, or national level, that 
uses the National or International Council on Continuing Education Standards or through a therapeutic 
recreation-related group (such as a hospital or other agency) or through a college/university that uses 
national continuing education standards. 

The content of the continuing education experiences must be linked directly to the knowledge areas of 
therapeutic recreation specialist from the National Job Analysis Study conducted by National Council For 
Therapeutic Recreation Certification (NCTRC). The major categories of therapeutic recreation knowledge 
areas are: 

(1) Background Information 

(2) Diagnostic Groupings and Populations served 

(3) Assessment 

(4) Planning the Program 

(5) Implementing the Program/Treatment 

(6) Documentation and Evaluation 

(7) Organizing and Managing Services 

(8) Advancement of the Profession 

Only study via self-study courses that are credited by an acceptable continuing education granting agency 
as described in this Paragraph will be accepted. 

(f) Academic Courses 

(1) Credit equivalents for completing academic coursework are: 

1 semester = 15 Contact hours = 15 CEP's 

1 trimester = 14 Contact hours = 14 CEP's 

i quarter = 10 Contact hours = 10 CEU's 

(2) Credit equivalents for audited academic coursework are: 

1 semester = 8 Contact hours = 8 CEP's 

1 trimester = 7 Contact hours = 7 CEP's 

i quarter = 5 Contact hours = 5 CEU's 

The content of academic courses should also be linked to the knowledge areas of the National Job Analysis 
Study conducted by NCTRC. 

(g) Professional F^iblications and Presentations: Credit for the following professional publications and 
presentations may be requested: 

Editorials 5 CEP's 

Articles on original research 15 CEP's 

Newsletter article 2 CEP's 

Editing a textbook 15 CEP's 

Authoring a textbook chapter 15 CEP's 

Journal Articles 10 CEP's 

Journal reviews or book review 5 CEP's 



1331 8:14 NORTH CAROLINA REGISTER October 15, 1993 



PROPOSED RULES 



Research abstract 

Textbook 

Unpublished masters or doctoral thesis 

Presentations at professional meetings 



2 
20 
10 

2 



CEP's 
CEP's 
CEP's 



CEFs per 50 minutes of lecture- 
Credit will not be given for repeat or multiple presentations of the same seminar, in-service, conference, 
original papers or poster presentation. 
No more than 10 CEP's can be earned in the area of presentations and publications. 

(h) Examination: If the examination component is chosen. Therapeutic Recreation Specialists will be 
required to take the current examination for professional level certification. The examination must be taken 
and passed within the two years of current certification. For example, a TRS certified in November of 1993 
can take the exam as early as November of 1994 but no later than November of 1995 to count this 
component toward renewal requirements. 



Statutory Authority as. 90C-9c(4). 

,0012 REINSTATEMENT 

A person who has allowed his or her certification 
to lapse shall complete a new application for 
certification which recognizes the standards in 
effect at the time. If the Board determines that the 
certification should be reinstated, it shall issue a 
certificate renewal to the applicant. 

Statutory Authority G.S 90C-12. 

.0013 REVOCATION 

(a) When it is reported to TRCB in writing that 
a certified person has been convicted of a crime 
that indicates the person is unfit or incompetent to 
practice Therapeutic Recreation; an investigation 
will be conducted by TRCB or by the Professional 
Conduct Committee appointed by TRCB. TRCB 
will then take necessary action in response to the 
findings of the Committee. 

(b) Revocation of certification will also occur 
for any of the following reasons: 

(1) Obtaining or attempting to obtain 
certification by fraud or deception. 

(2) Knowingly assisting another to obtain 
or attempt to obtain credentialling by 
fraud or deception. 
Unauthorized use of certification or 



(3) 
14) 

(5) 

(61 



ialsification of credentials. 



Unauthorized possession or distribution 
of certifying agency testing or exam 
materials, including copying and repro- 
ducing exam questions and problems. 
Misstatement of material fact or failure 
to make statement of material fact in 
application or statement or representa- 
tion to any certifying board. 
Falsifying information required for 
admission to exam, impersonating 
another examinee, or falsifying educa- 
tion or credentials on application. 



(7) Copying answers, permitting another to 
copy answers or providing or receiving 
unauthorized advice about the exam 
content during the examination. 

(8) Failure to pay certification fees. 

(c) The Board will remain in compliance with 
the American Disabilities Act when conducting 
investigation of a person who has a mental or 
physical disability or uses any drugs to a degree 
that would endanger the public. 

Statutory Authority G.S. 90C-14(2)(3). 



8:14 



NORTH CAROLINA REGISTER 



October 15, 1993 



1332 



RRC OBJECTIONS 



1 he Rules Review Commission (RRC) objected to the following rules in accordance with G.S. 
143B-30.2(c). State agencies are required to respond to RRC as provided in G.S. 143B-30.2(d). 



ADMINISTRATION 

Department of Administration's Minimum Criteria 

1 NCAC 39 .0101 - Purpose 
No Response from Agency 
Agency Responded 
Agency Revised Rule 

1 NCAC 39 .0301 - Exceptions to Minimum Criteria 

No Response from Agency 
Agency Responded 
Agency Revised Rule 

AGRICULTURE 

North Carolina State Fair 

2 NCAC 20B .0102 - Traffic Regulations 

Agency Revised Rule 
2 NCAC 20B .0106 - General 
2 NCAC 20B .0204 - Forfeiture 

Agency Revised Rule 

Plant Industry 

2 NCAC 48C .0023 - Analysis for Farmers or Seedmen 
Agency Revised Rule 

ENVIRONMEIVT, HEALTH, AND NATURAL RESOURCES 

Coastal Management 

15A NCAC 7H .2002 - Approval Procedures 
15A NCAC 7H .2004 - General Conditions 

Environmental Management 

15A NCAC 2H .0610 - Permit Requirements for Toxic Air Pollutants 

Agency Revised Rule 
15A NCAC 2H .1110 - Implementation 

Agency Responded 

Agency Responded 

Agency Responded 

Agency Responded 

No Response from Agency 

Agency Responded 
15A NCAC 2L .0103 - Policy 



RRC 


Objection 


06/17/93 


Obj. 


Cont d 


07/15/93 


Obj. 


Cont d 


08/20/93 


Obj. 


Removed 


09/17/93 


RRC 


Objection 


06/17/93 


Obf 


Cont d 


07/15/93 


Obj. 


Cont d 


08/20/93 


Obj. 


Removed 


09/17/93 



RRC Objection 
Obj. Removed 
RRC Objection 
RRC Objection 
Obj. Removed 



RRC Objection 
Obj. Removed 



09/17/93 
09/17/93 
09/17/93 
09/17/93 
09/17/93 



09/17/93 
09/17/93 



RRC Objection 
RRC Objection 



09/17/93 
09/17/93 



RRC Objection 


09/17/93 


Obj. Removed 


09/17/93 


RRC Objection 


02/18/93 


Obj. Contd 


03/18/93 


Obf Contd 


05/19/93 


Obf Contd 


06/17/93 


Obj. Contd 


07/15/93 


Obj. Contd 


08/20/93 


Obj. Removed 


09/1 7/93 


RRC Objection 


09/17/93 



1333 



8:14 



NORTH CAROLINA REGISTER 



October 15, 1993 



RRC OBJECTIONS 



Agency Revised Rule 
15A NCAC 2L .0104 - RS Designation 

Agency Revised Rule 
15A NCAC 2L .0113 - Variance 

Agency Revised Rule 
15A NCAC2L .0201 - Groundwater Classifications 

Agency Revised Rule 

Health: Epidemiology 

15A NCAC 19B .0301 - Application for Initial Permit 

Agency Revised Rule 
15A NCAC 19B .0304 - Conditions for Renewal of Permit 

Agency Revised Rule 
15A NCAC 19B .0309 - Qualification of Mainteruince Personnel 

Agency Revised Rule 



RRC Objection 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



09/17/93 
09/17/93 
09/17/93 
09/17/93 
09/17/93 
09/17/93 
09/17/93 



09/17/93 
09/17/93 
09/17/93 
09/17/93 
09/17/93 
09/17/93 



Health: Personal Health 

ISA NCAC 21D .0501 - Allowable Foods 

Agency Revised Rule 
ISA NCAC 21D . 1204 - Client Eligibility 

Agency Revised Rule 
ISA NCAC 21D . 1207 - Payment for Reimbursable Services 

Agency Revised Rule 

HUMAN RESOURCES 
Children's Services 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



09/17/93 
09/17/93 
09/17/93 
09/17/93 
09/17/93 
09/17/93 



10 NCAC 41 R .0002 - Administration and Organization 
Agency Responded 
Rule Returned to Agency 
Agency Filed Rule for Codification Over RRC Objection 



RRC Objection 07/1S/93 

Obj. Contd OS/20/93 

Obj. Contd 09/17/93 

Eff. 10/01/93 



Medical Assistance 



10 NCAC 263 .0112 - North Carolina Specialty Hospital Services 
Agency Revised Rule 



RRC Objection 
Obj. Removed 



09/17/93 
09/17/93 



LICENSING BOARDS AND COMMISSIONS 
Foresters 



21 NCAC 20 .0020 - Certification of Consulting Foresters 
21 NCAC 20 .0021 - Rejection of Consultant Affidavit 
21 NCAC 20 .0022 - Handling of Complaints 



RRC Objection 09/17/93 
RRC Objection 09/17/93 
RRC Objection 09/17/93 



Landscape Architects 



21 NCAC 26 .020S - Forms of Practice 
Rule Returned to Agency 
Agency Filed Rule for Codification Over RRC Objection 

21 NCAC 26 .0207 - Application of Professional Seal 
Rule Returned to Agency 



RRC Objection 06/17/93 

07/1S/93 

Eff. 08/01/93 

RRC Objection 06/17/93 
07/1S/93 



8:14 



NORTH CAROLINA REGISTER 



October 15, 1993 



1334 



RRC OBJECTIONS 



Agency Filed Rule for Codification Over RRC Objection 

21 NCAC 26 .0208 - Improper Conduct 
Rule Returned to Agency' 
Agency Filed Rule for Codification Over RRC Objection 

Social Work 

21 NCAC 63 .0210 - Provisional Certificates 
Agency Rex'ised Rule 
Agency Revised Rule 

PUBLIC EDUCATION 

Elementary and Secondary Education 

16 NCAC 6C .0312 - Certificate Suspension and Revocation 
Agency Rexised Rule 

REVENUE 



Eff. 08/01/93 

RRC Objection 06/1 7/93 

07/15/93 

Eff. 08/01/93 



RRC Objection 08/20/93 
RRC Objection 08/20/93 
Obj. Removed 09/17/93 



RRC Objection 
Obj. Removed 



09/17/93 
09/17/93 



Departmental Rules 

17 NCAC IC .0502 - Method of Payment 

Agency Revised Rule 
17 NCAC IC .0503 - EFT Definitions 

Agency Revised Rule 

Sales and Use Tax 

17 NCAC 7B .1907 - Scrap Tire Disposal Tax 
Agency Re\ised Rule 

TRANSPORTATION 



RRC Objection 09/17/93 

Obj. Removed 09/17/93 

RRC Objection 09/1 7/93 

Obj. Removed 09/17/93 



RRC Objection 
Obj. Removed 



09/17/93 
09/17/93 



Division of Highways 



19A NCAC 2B .0162 - Delegation to Manager of Program and Policy 

Agency Revised Rule 
19A NCAC 2B .0164- Use of Right of Why Consultants 

Agency Revised Rule 
19A NCAC 2B .0208 - Uniform Traffic Control Devices 

Agency Revised Rule 
19A NCAC 2B .0225 - Blue Star Memorial Highway Signs 

Agency Rex'ised Rule 
19A NCAC 2B .0602 - Obtaining a Driveway Construction Permit 

Agency Withdrew Rule 
19A NCAC 2D .0801 - Pre-Qualifying to Bid: Requalification 
19A NCAC 2D .0802 - Invitation to Bid 
19A NCAC 2D .0803 - Advertisement and Invitations for Bids 
19A NCAC 2D .0815 - Rejection of Bids 

Agency Revised Rule 
19A NCAC 2D .0821 - Return of Bid Bond or Bid Deposit 
19A NCAC 2D .0825 - Confidentiality of Cost Estimates and Bidding Lists 

Agency Revised Rule 
19A NCAC 2E .0217 - Specific Information Program Definitions 



RRC Objection 


09/17/93 


Obj. Removed 


09/1 7/93 


RRC Objection 


09/1 7/93 


Obj. Removed 


09/17/93 


RRC Objection 


09/17/93 


Obj. Removed 


09/1 7/93 


RRC Objection 


09/17/93 


Obj. Removed 


09/17/93 




09/17/93 


RRC Objection 


09/17/93 


RRC Objection 


09/17/93 


RRC Objection 


09/17/93 


RRC Objection 


09/17/93 


Obj. Removed 


09/17/93 


RRC Objection 


09/17/93 


RRC Objection 


09/1 7/93 


Obj. Removed 


09/17/93 


RRC Objection 


09/17/93 



1335 



8:14 



NORTH CAROLINA REGISTER 



October 15, 1993 



RRC OBJECTIONS 



> 



Agency Revised Rule 
19A NCAC 2E .0220 - Composition of Signs 

Agency Revised Rule 
19A NCAC 2E .0222 - Contracts with the Department 

Agency Revised Rule 



Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



09/17/93 
09/17/93 
09/17/93 
09/17/93 
09/17/93 



8:14 



NORTH CAROLINA REGISTER 



October 15, 1993 



1336 



RULES INVALIDATED BY JUDICIAL DECISION 



1 his Section of the Register lists the recent decisions issued by the North Carolina Supreme Court, 
Court of Appeals, Superior Court (when available), and the Office of Administrative Hearings which 



invalidate a rule in the North Carolina Administrative Code. 



1 NCAC 5A .0010 - ADMINISTRATIVE PROCEDURES 

Thomas R. West, Administrative Law Judge with the Office of Administrative Hearings, declared two portions 
of Rule 1 NCAC 5A .0010 void as applied in Stauffer Information Systems, Petitioner v. The North Carolina 
Department of Community Colleges and The North Carolina Department of Administration, Respondent and 
The University of Southern California, Intervenor-Respondent (92 DOA 0666). 

10 NCAC 3H .0315(b) - NURSING HOME PATIENT OR RESIDENT RIGHTS 

Dolores O. Nesnow, Administrative Law Judge with the Office of Administrative Hearings, declared Rule 10 
NCAC 3H .0315Cb) void as applied in Barbara Jones, Petitioner v. North Carolina Department of Human 
Resources, Division of Facility Ser\ices, Licensure Section, Respondent (92 DHR 1192). 

10 NCAC 3R .1124(f) - ACCESSIBILIT\' TO SERVICES 

Beecher R. Gray. Administrative Law Judge with the Office of Administrative Hearings, declared Rule 10 
NCAC 3R .1124(f) void as applied in Britthaven, Inc. d/b/a Britthaven of Morganton, Petitioner v. N.C. 
Department of Human Resources, Division of Facility Serxices, Certificate of Need Section, Respondent and 
Valdese Nursing Home. Inc. , Respondent-Intervenor (92 DHR 1785). 

ISA NCAC 30 .0201(a)(1)(A) - STDS FOR SHELLFISH BOTTOM & WATER COLUMN LEASES 

Julian Mann IIL Chief Administrative Law Judge with the Office of Administrative Hearings, declared Rule 
15A NCAC 30 .0201(a)(1)(A) void as applied in William R. Willis, Petitioner v; North Carolina Division of 
Marine Fisheries, Respondent (92 EHR 0820). 

15A NCAC 19A .0202(d)(10) - CONTROL MEASLHES - HIV 

Brenda B. Becton, Administrative Law Judge with the Office of Administrative Hearings, declared Rule 15A 
NCAC 19A .0202(d)(10) void as applied in ACT-UP TRIANGLE (AIDS Coalition to Unleash Pov^-er Triangle), 
Steven Harris, and John Doe. Petitioners v. Commission for Health Services of the State of North Carolina, 
Ron Levine, as Assistant Secretary of Health and State Health Director for the Department of Emironment, 
Health, and Natural Resources of the State of North Carolina, William Cobey, as Secretary of the Department 
of Emironment. Health, and Natural Resources of the State of North Carolina, Dr. Rebecca Meriwether, as 
Chief, Communicable Disease Control Section of the North Carolina Department of Environment, Health, and 
Natural Resources, Vijyne Bobbitt Jr . as Chief of the HIV/SID Control Branch of the North Carolina 
Department of Emironment , Health, and Natural Resources , Respondents (91 EHR 0818). 



1337 8:14 NORTH CAROLINA REGISTER October 15, 1993 



CONTESTED CASE DECISIONS 



1 his Section contains the full text of some of the more significant Administrative Law Judge decisions 
along with an index to all recent contested cases decisions which are filed under North Carolina 's 
Administrative Procedure Act. Copies of the decisions listed in the index and not published are available 
upon request for a minimal charge by contacting the Office of Administrative Hearings, (919) 733-2698. 



AGENCY 



CASE 
NUMBER 



AJUI 



n\TEOF 

DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



ADMINISTRATION 

LMS Express, Inc. v. Administration, Div of Purchase & Contract 92 DOA 0735 

StaufFer Information Systems v. Community Colleges &. Administration 92 DOA 0803 

McLaurin Parking Co. v. Administration 92 DOA 1662 

Warren H. Amngton Jr. v. Division of Purchase & Contract 93 DOA 0132 

ALCOHOLIC BEVERAGE CONTROL COMMISSION 



Morgan 06/04/93 

West 06/10/93 

Morrison 04/02/93 

West 07/21/93 



8:7 NCR 613 
8:3 NCR 320 



Alcoholic Beverage Control Comm. v. Aim Oldham McDowell 
Curtis R^ Lynch v. Alcoholic Beverage Control Comm. 
Alcoholic Beverage Control Conun. v. Ezra Everett Rigshee 
Alcoholic Beverage Contnal Comm. v. Partnership, Phillip Owen Edwand 



Gary Morgan Neugent 
Azzat Aly Amer 
Kirty Ronald Eldridge 
Gloria Black McDuffie 
Larry Isacc Hailstock 
V. Author^ Ralph Cccchini Jr. 



Alcoholic Beverage Control Comm. 
Alcoholic Beverage Control Comm. 
Alcoholic Beverage Control Comm. 
Alcoholic Beverage Control Comm. ' 
Alcoholic Beverage Control Comm. ' 
Alcoholic Beverage Control Comm. 
Johrmie L. Baker v. Alcoholic Beverage Control Commission 
RAMSAC Enterprises, Inc. v. Alcoholic Beverage Control Comm. 
Alcoholic Beverage Control Comm. v. Aubrey Rudolph Wallace 
Alcoholic Beverage Control Comm. v. Mermaid, Inc. 
Alcoholic Beverage Control Comm. v. Majdi Khalid Wahdan 
Cornelius Hines T/A Ebor^ Lour^e v. Alcoholic Beverage Ctl. Comm. 
Alcoholic Beverage Control Comm. v. Homer I^trick Godwin Jr. 
Alcoholic Beverage Control Comm. v. Wanda Lou Ball 
Charles Anthonious Morant v. Alcoholic Beverage Control Comm. 
Alcoholic Beverage Control Comm. v. Billy Fincher McSwain Jr. 
Jean Hoggard Askew v. Alcoholic Beverage Control Commission 
ABC Comm. v. Partnership/T/A Conotheis Comty Clr &. Pri\Bte Club 
Alcoholic Beverage Control Comm. v. James Elwood Alphin 
Alcoholic Beverage Control Comm. v. James WtlHam Campbell 
Barbara Locklear v. Alcoholic Beverage Control Commission 
Zachary Andre Jones v. Alcoholic Beverage Control Commission 
Alcoholic Beverage Control Comm. v. Richard Donald James Jr. 
William Vernon Franklin & Gene Carroll Daniels v. ABC Commission 
Charles Edward Hare, Club Paradise v. Alcoholic Beverage Ctl. Comm. 
Alcohlic Beverage Control Comm. v. Partnership t/a RJ's Store 
Alcoholic Bev. Control Comm. v. Mild & Wild, Inc., Sheila Scholz 



92 ABC 0260 


Morgan 


04/01/93 




92 ABC 0288 


Gray 


05/18/93 




92 ABC 0702 


WesI 


07/30/93 




92 ABC 0978 


Gray 


05/28/93 




92 ABC 1086 


Becton 


03/22/93 




92 ABC 1 149 


Reilly 


09/01/93 




92 ABC 1153 


Chess 


04/26/93 




92 ABC 1476 


West 


05/26/93 




92 ABC 1483 


Reilly 


04/07/93 




92 ABC 1690 


Morgan 


06/29/93 




92 ABC 1735 


Chess 


05/07/93 




93 ABC 0002 


Morrison 


07/02/93 




93 ABC 0047 


Gray 


05/28/93 




93 ABC 0076 


Gray 


08/04/93 




93 ABC 0087 


Becton 


07/06/93 


8:9 NCR 785 


93 ABC 0118 


Morrison 


08/04/93 




93 ABC 0125 


Reilly 


05/13/93 




93 ABC 0182 


Nesnow 


07/29/93 




93 ABC 0232 


Chess 


07/20/93 




93 ABC 0239 


Gray 


08/26/93 




93 ABC 0255 


West 


09/10/93 




93 ABC 0318 


Reilly 


07/22/93 




93 ABC 0326 


Gray 


08/26/93 




93 ABC 0327 


Gray 


08/09/93 




93 ABC 0395 


West 


09/14/93 




93 ABC 0421 


West 


09/13/93 




93 ABC 043 1 


Nesnow 


09/01/93 




93 ABC 0570 


Reilly 


09/17/93 




93 ABC 0644 


Gray 


08/10/93 




93 ABC 0860 


Mann 


09/29/93 




93 ABC 1475 


Nesnow 


03/23/93 





COMMERCE 



Lester Moorc v. Weatheri2ation Assistance Program 
CRIME CONTROL AND PUBLIC SAFETY 



93 COM 0105 



Gray 



03/08/93 



George W. I^ylor v. Crime Victims Compensation Comm. 
Steven A. Bamer v. Crime Victims Compensation Comm. 
Anthoriy L. Hart v. Victims Compensation Comm. 
Jermifer Ayers v. Crime Victims Compensation Comm. 
Janie L. Howard v. Crime Victims Compensation Comm. 
Isabelle Hyman v. Crime Victims Compensation Comm. 
James G Pellom v. Crime Control &. Public Safely 
Norman E. Brown v. Victims Compensation Commission 



91 CPS 1286 


Morgan 


04/27/93 


92 CPS 0453 


Nesnow 


06/01/93 


92 CPS 0937 


Chess 


03/01/93 


92 CPS 1195 


Reilly 


03/19/93 


92 CPS 1787 


Reilly 


03/26/93 


92 CPS 1807 


Morrison 


05/24/93 


93 CPS 0034 


Gray 


05/05/93 


93 CPS 0141 


West 


07/07/93 



8:14 



NORTH CAROLINA REGISTER 



October 15, 1993 



1338 



CONTESTED CASE DECISIONS 



AGENCY 



Moses H. Cone Mem Hosp v. Victims Compensation Conim. 
David & Jane Spano v. Crime Control &l F^ihlic Safely 
Phillip Edward Moorc v. Crime Control & Public Safety 
Norma Jean Purkelt v. Crime Victims Compensation Comm. 
Sheila Carter v. Crime Control and Public Safety 
John Willie Leach v. Crime Victims Compensation Comm. 
Nellie R. Mangum v. Crime Victims Compensation Comm. 
Constance Brown v. Crime Victims Compensation Comm. 
Susan Coy v. Crime Victims Compensation Commission 



CASE 




DATE OF 


NUMBER 


ALJ 


DECISION 


93CPS 0152 


Nesnow 


04/02/93 


93 CPS 0160 


Ne«now 


07/30/93 


93 CPS 0169 


Nesnow 


05/20/93 


93 CPS 0205 


Wcsl 


08/27/93 


93 CPS 0249 


Morgan 


08/25/93 


93 CPS 0263 


Morrison 


05/20/93 


93 CPS 0303 


Morrison 


06/08/93 


93 CPS 035 1 


Reilly 


05/24/93 


93 CPS 0623 


Reilly 


09/22/93 



PUBLISHED DECISION 
REGISTER CITATION 



8:3 NCR 327 
8:10 NCR 862 



8:12 NCR 1171 



< 



ENVIRONMENT. HEALTH. AND NATURAL RESOURCES 



Charles L. Wilson v. Environment, Health, &. Natural Resources 
J. Bruce Mulligan v. Environment, Health, &. Natrual Resources 
Michael D. Barnes v. Onslow Cty HIth &. Environment and EHR 
William E. Finck v. Environment, Health. & Natural Resources 
Utl(^ C. Stallings v. Environment, Health. & Natural Resources 
A.J. Ballard Jr.. Tire &. Oil Co.. Inc. v. En\'.. Health, &. Nat. Res. 
Safew^ Removal. Inc. v. Environment. Health, &. Natural Res. 
White Oak Chapter of the Izaak Walton League, Inc., and 

National Parks and Conservation Association. Inc. v. 

Division of Solid Waste Management. EHR and Haywood County 
Elizabeth City/I^quotank Cty Mun Airport Aulh v. EHNR 
Interstate Brands Corp &. Donald Leffew v. Env.. Health, & Nat. Res. 
Ser\'ice Oil Company v. Environment, Health, & Natural Resources 
Interstate Brands Corp & Donald Leffew v. Env.. Health, & Nat. Res. 
Residents of Camm & Shell v. Health Environmental - Septic Tank Div. 
City of Salisbury v. Environment, Health, & Natural Resources 
Willie M. Watford v. Hertford Gates District Health Department 
Standard Speciality Contractors, Inc. v. EHNR 
Shav-xqi A. Jaber v. Envirormient, Health, & Natural Resources 
Angela Power, Albert Power v. Children's Special Health Svcs. 
Rayco Utilities, Inc. v. Environment, Health. & Natural Resources 
Erby Lamar Grainger v. Environment, Health, & Natural Resources 
Mustafa E. Essa v. Environment, Health, & Natural Resources 
Charlie Garfield Mcpherson Swine Farm v. Env., Health, &. Nat. Res. 
Roselta Brim^e, Vanessa f^ck v. Ertv. Health of C^a^'en County 
R.L. Stowe Mills, Inc. v. Environment, Health, tS: Natural Resources 
O.C. Stafford /Larry Haney v. Montgomery Cty. Health Dept. 
Fred M. Grooms v. Errvironment, Health, & Natural Resources 
Bobty Anderson v. Environment, Health, & Natural Resources 
Shell Bros. Dist., Inc. v. Environment, Health, & Natural Resources 
Fred C. Gosnell Sl wife, I^tricia T. Gosnell v. Env., Health. & Nat. Res. 
Holding Bros., Inc. v. Environment. Health, & Natural Resources 
Hamilton Beach/Proctor-Silex. Inc. v. Environment. Health. & Nalrl Res 



91 EHR 0664 


Morgan 


03/23/93 




91 EHR 0773 


W«it 


07/13/93 




91 EHR 0825 


Morgan 


06/21/93 




92 EHR 0040 


Gray 


06/14/93 




92 EHR 0062 


Gray 


03/15/93 




92 EHR 0754 


Nesnow 


08/30/93 




92 EHR 0S26 


West 


03/12/93 


8:1 NCR 83 


92 EHR 0881 


West 


09/14/93 




92 EHR 1140 


Gray 


04/13/93 




92 EHR 1201*" 


Reilly 


08/12/93 




92 EHR 1205 


Reilly 


05/27/93 




92 EHR 1224*" 


Reilly 


08/12/93 




92 EHR 1462 


Morrison 


08/25/93 




92 EHR 1472 


Morrison 


04/22/93 




92 EHR 1600 


Chess 


03/24/93 




92 EHR 1660 


Reilly 


05/21/93 




92 EHR 1784 


Becton 


07/07/93 




93 EHR 0008 


Becton 


03/24/93 




93 EHR 0063 


Morrison 


09/17/93 




93 EHR 0071 


Reilly 


06/21/93 




93 EHR 0146 


Gray 


03/29/93 




93 EHR 0181 


Reilly 


07/23/93 


8:10 NCR 870 


93 EHR 0206 


Nesnow 


05/20/93 




93 EHR 0219 


Morrison 


08/11/93 


8:11 NCR 996 


93 EHR 0224 


Gray 


06/07/93 




93 EHR 0276 


West 


08/27/93 


8:12 NCR 1176 


93 EHR 0299 


Reilly 


06/07/93 




93 EHR 0308 


Becton 


05/18/93 




93 EHR 0340 


Becton 


08/11/93 




93 EHR 0380 


Nesnow 


08/03/93 


8:11 NCR 1001 


93 EHR 0477 


Reilly 


06/29/93 





i 



HUMAN RELATIONS COMMISSION 

Human Relations Comm. on behalf of Tyrone Clark v. Myrtle Wilson 92 HRC 0560 Becton 09/07/93 8:13 NCR 1287 

Human Relations Comm. on behalf of Maisha Crisco v. Hayden Morrison 93 HRC 0167 Reilly 08/18/93 8:12 NCR 1168 



HUMAN RESOURCES 

O.C. Williams v. Human Resources 

Ronald Terry Brown v. Human Resources 

Dennis K. King v. Human Resources 

Cathy Harris, A/K/A Cathy D. Grubb v. Human Resources 

Raymond L. Griffin v. Human Resources 

O.C. Williams v. Human Resourc^es 

Michael L. Ray v. Human Resources 

Randy Chambliss v. Human Resources 

Melvin White v. Human Resources 

Joseph R. KH\'aliauskas Jr. v. Human Resources 

Larry D. Boyd v. Human Resources 



91 CSE0036*- 


Morgan 


03/30/93 


91 CSE0249 


Morgan 


05/17/93 


91 CSE 1122 


Morgan 


07/28/93 


91 CSE 1131 


Morgan 


08/24/93 


91 CSE 1148 


Morgan 


08/24/93 


91 CSE 1158*= 


Morgan 


03/30/93 


91 CSE 1173 


Morgan 


05/17/93 


91 CSE 1187 


Morgan 


04/28/93 


91 CSE 1192 


Morgan 


05/17/93 


91 CSE 1204 


Morgan 


07/29/93 


91 CSE 1214 


Morgan 


08/24/93 



i 



Consolidated cases. 



1339 



8:14 



NORTH CAROLINA REGISTER 



October 15, 1993 



CONTESTED CASE DECISIONS 



I 



> 



> 



AGENCY 



JefiFerson D. Bcylen v. Human Resources 

Jefifery D. Williams v. Human Resources 

Jerry L. Summere v. Human Resources 

Samuel E. Massenbetg Jr. v. Human Resources 

William A. Dixon v. Human Resources 

Gregory L. Washington v. Human Resources 

Edwin Clarke v. Human Resources 

Dw^ne Allen v. Human Resources 

Edwin Ivester v. Human Resources 

Connie F Epps, Otis Junior Epps v. Human Resources 

Tyrone Aiken v. Human Resources 

Everett M. Eaton v. Human Resources 

Edftaid E. Brandon v. Human Resources 

Darrell W. Russell v. Human Resources 

John Henry Byrd v. Human Resources 

Michelle D. Moblcy v. Human Resources 

Gus W. Lx)ng Jr. v. Human Resources 

Robert E. Watson v. Human Resources 

Byron Christopher Williams v. Human Resources 

James W. Bell v. Human Resources 

Charles W. Stall Jr. v. Human Resources 

Eric Stanley Stokes v. Human Resources 

Clayton L. Littleton v. Human Resources 

Frank E. Johnson v. Human Resources 

David Rollins v. Human Resources 

Willie Sam Brown v. Human Resources 

Lyndell Greene v. Human Resources 

Charles Swann v. Human Resources 

Michael Anthony Dean v. Human Resources 

Leroy Snuggs v. Human Resources 

James P. Miller ID v. Human Resources 

Herbert H. Fordham v. Human Resources 

Jack Dulq v. Human Resources 

Larry L. Crowder v. Human Resources 

Carlos Bemaid Davis v. Human Resources 

Ocie C. Williams v. Human Resources 

Terrance Freeman v. Human Resources 

Floyd Excell Stafford v. Human Resources 

Timothy Brian EUer v. Human Resources 

Charles S. Ferrer v. Human Resources 

Ronald H. Lockl^ v. Human Resources 

Rene Thomas Rittenhouse v. Human Resources 

Thomas Edward Williamson v. Human Resources 

Roy Chester Robinson v. Human Resources 

Lynwood McClinton v. Human Resources 

Timothy Scott Long v. Human Resources 

David W. Williams v. Human Resources 

William E. Ingram v. Human Resources 

Harold R. Pledger v. Human Resources 

Carl Beard v. Human Resources 

Henry Alston Jr. v. Human Resources 

Michael W. Bentley v. Human Resources 

Dale Robert Stuhrc v. Human Resources 

James T Carter Jr. v. Human Resources 

Tommy Malone v. Human Resources 

James C. Dixon Jr. v. Human Resources 

Timotlty R. Currence v. Human Resources 

Wallace M. Cooper v. Human Resources 

Jarvis N. Price v. Human Resources 

Thomas L. Yates v. Human Resources 

Robert E. Tarlton Sr. v. Human Resources 

Rodney Devaid Clemons v. Human Resources 

James A. Coleman v. Human Resources 

Lee Richard Jones v. Human Resources 

Romeo F. Skapple v. Human Resources 

Jeffrey L. Garrett v. Human Resources 

Edward Kirk v. Human Resources 

William C. Hubbaid v. Human Resources 



CASE 




DATE OF PUBLISHED DECISION 


NUMBER 


ALJ 


DECISION REGISTER CITATION 


91 CSE 1217 


Morgan 


05/17/93 


91 CSE 1231 


Morgan 


04/28/93 


91 CSE 1234 


Morgan 


07/28/93 


91 CSE 1249 


Morgan 


05/17/93 


91 CSE 1277 


Morrison 


03/04/93 


92 CSE 0075 


Morgan 


04/01/93 


92 CSE 0129 


Morgan 


05/17/93 


92 CSE 0196 


Morgan 


03/31/93 


92 CSE 0268 


Nesnow 


03/30/93 


92 CSE 1182 


Reilly 


07/22/93 


92 CSE 1217 


Gray 


06/17/93 


92 CSE 1221 


Reilly 


07/27/93 


92 CSE 1237 


Gray 


04/16/93 


92 CSE 1249 


Bee ton 


04/20/93 


92 CSE 1250 


Reilly 


06/04/93 


92 CSE 1256 


Nesnow 


04/15/93 


92 CSE 1263 


Gray 


08/16/93 


92 CSE 1265 


Reilly 


05/06/93 


92 CSE 1270 


Nesnow 


04/26/93 


92 CSE 1311 


Nesnow 


05/10/93 


92 CSE 1313 


Mann 


07/06/93 


92 CSE 1316*' 


Reilly 


03/25/93 


92 CSE 1317 


Morrison 


09/02/93 


92 CSE 1326 


Reilly 


08/16/93 


92 CSE 1334 


Morrison 


05/06/93 


92 CSE 1338 


Morrison 


09/15/93 


92 CSE 1346 


Nesnow 


04/16/93 


92 CSE 1347 


West 


09/16/93 


92 CSE 1356 


Morrison 


08/13/93 


92 CSE 1360 


Morrison 


04/15/93 


92 CSE 1361 


Gray 


04/16/93 


92 CSE 1362 


Nesnow 


07/19/93 


92 CSE 1374 


Gray 


07/16/93 


92 CSE 1396 


Reilly 


04/15/93 


92 CSE 1404 


Peiily 


04/15/93 


92 CSE 1405 


Mann 


06/25/93 


92 CSE 1411 


Mann 


06/07/93 


92 CSE 1412 


Reilly 


08/31/93 


92 CSE 1414 


Reilly 


04/20/93 


92 CSE 1416 


Mann 


04/15/93 


92 CSE 1418 


Nesnow 


04/20/93 


92 CSE 1421 


Nesnow 


04/20/93 


92 CSE 1422 


Reilly 


04/20/93 


92 CSE 1423 


Reilly 


04/15/93 


92 CSE 1424 


Reilly 


09/15/93 


92 CSE 1445 


Bee ton 


06/29/93 


92 CSE 1448 


Nesnow 


07/19/93 


92 CSE 1450 


Reilly 


04/15/93 


92 CSE 1455 


Morrison 


05/20/93 


92 CSE 1459 


Reilly 


09/08/93 


92 CSE 1460 


Bee ton 


06/29/93 


92 CSE 1512 


Nesnow 


06/09/93 


92 CSE 1516 


Reilly 


05/11/93 


92 CSE 1517 


Mann 


08/31/93 


92 CSE 1520 


Mann 


05/07/93 


92 CSE 1522 


Bee ton 


05/11/93 


92 CSE 1523 


Reilly 


09/09/93 


92 CSE 1527 


Reilly 


05/11/93 


92 CSE 1531 


Morrison 


05/12/93 


92 CSE 1535 


Gray 


05/10/93 


92 CSE 1536 


Gray 


05/17/93 


92 CSE 1539 


Gray 


05/10/93 


92 CSE 1540 


Reilly 


05/11/93 


92 CSE 1541 


Reilly 


09/08/93 


92 CSE 1545 


Gray 


04/26/93 


92 CSE 1557 


Gray 


04/22/93 


92 CSE 1560 


Gray 


06/29/93 


92 CSE 1562 


Mann 


05/12/93 



8:14 



NORTH CAROLINA REGISTER 



October 15, 1993 



1340 



CONTESTED CASE DECISIONS 



AGENCY 



William Michael Przytysz v. Human Resources 

Edv^id Fitch V. Human Resources 

David Robinette v. Human Resources 

Kil C. Elmore v. Human Resources 

Brian C. Gilmore v. Human Resources 

Philip S. Piercy v. Human Resources 

Anthony McLaughlin v. Human Resources 

Johni^ W. Cooke v. Human Resources 

Roland L. Essaff v. Human Resources 

Isaac Maxwell v. Human Resources 

Donald J. R^ v. Human Resources 

Charles Wayne Pierce v. Human Resources 

Donna G. Knotb v. Human Resources 

Donald R. Williams v. Human Resources 

McKinlcy Clyhurn v. Human Resources 

Henry L. T^lor v. Human Resources 

Tony TTiorpe v. Human Resources 

Jetfery D. Williams v. Human Resources 

Ronald Sowell v. Human Resources 

Billy Smith v. Human Resources 

Anthor^ Curry v. Human Resources 

John G. Williams v. Human Resources 

Larry W. Golden v. Human Resources 

William J. Carter v. Human Resources 

Mark W Dean v. Human Resources 

Tyrone Thomas v. Human Resources 

Rilton E. M^ V. Human Resources 

Joe K. Martin v. Human Resources 

Eric Stanley Stokes v. Human Resources 

Larry Thompson v. Human Resources 

Billie J. Smith v. Human Resources 

Patrick Floyd v. Human Resources 

Dennis W. Nolan v. Human Resources 

Eric L. Garland v. Human Resources 

Ira Alston Jr. v. Human Resources 

Elvis Bernard Telfair v. Human Resources 

Ronald G Bolden v. Human Resources 

Marvin Holl^ v. Human Resources 

Eddie Short v. Human Resources 

Michael Tywan Mareh v. Human Resources 

Leruy Jones v. Human Resources 

Antonio M. Townsend v. Human Resources 

Kevin J. Close v. Human Resources 

Thadius Bonapart v. Human Resources 

Joseph Eric Lewis v. Human Resources 

Ronald Dean Lowery v. Human Resources 

Tamera S. Hatfield v. Human Resources 

James E. Blakney v. Human Resources 

Oswinn Blue v. Human Resources 

Kelvin D. Jackson v. Human Resources 

Linwood Staton v. Human Resources 

Anthony Watson v. Human Resources 

Eugene Polk v. Human Resources 

Charles Thompson Jr. v. Human Resources 

Barbara W Catlett v. Human Resources 

Laurel Langford v. Human Resources 

Ida Diane Davis v. Human Resources 

Hatsuko Klein v. Human Resources 

Karen Mullins Martin v. Human Resources 

Ora Lee Brinklt^ v. David T. Flaherty, Secretary of Human Resources 

Mary McDuffie v. Human Resources Child Development 

Leon Barbee v. Human Resources 

Carrolton of Dunn. Inc. v. Human Resources 

Dialysis Care of North Carolina, Inc., d/b/a Dialysis Care of 
Cumberland County v. Human Resources, Division of Facility 
Services, Certificate of Need Section, and Bio-Medical 
Applications of Fayetleville dAi/a Fayeltirvillc Kidn^ Center, 
Webb-Loha'ichan-Melton Rentals. Bio^Medical Applications 



CASE 




DATE OF 


NUMBER 


AL,( 


DECISION 


92 CSE 1565 


Becton 


07/23/93 


92 CSE 1572 


Reilly 


05/11/93 


92 CSE 1573 


Mann 


07/14/93 


92 CSE 1575 


Gray 


07/16/93 


92 CSE 1576 


Gray 


04/26/93 


92 CSE 1577 


Gray 


07/16/93 


92 CSE 1582 


Gray 


06/29/93 


92 CSE 1585 


Becton 


05/11/93 


92 CSE 1588 


Morrison 


07/26/93 


92 CSE 1589 


Rcilly 


04/26/93 


92 CSE 1592 


Mann 


05/19/93 


92 CSE 1596 


Morrison 


07/14/93 


92 CSE 1611 


Morrison 


07/16/93 


92 CSE 1622 


Ncsnow 


08/04/93 


92 CSE 1623 


Morrison 


05/20/93 


92 CSE 1624 


Mann 


09/15/93 


92 CSE 1625 


Chess 


07/15/93 


92 CSE 1626 


Mann 


05/19/93 


92 CSE 1627 


Reilly 


07/19/93 


92 CSE 1629 


Reilly 


03/25/93 


92 CSE 1631 


Reilly 


03/25/93 


92 CSE 1632 


Mann 


08/10/93 


92 CSE 1633 


Reilly 


03/25/93 


92 CSE 1637 


Nesnow 


05/19/93 


92 CSE 1638 


Reilly 


07/15/93 


92 CSE 1640 


Mann 


07/22/93 


92 CSE 1642 


Morgan 


07/29/93 


92 CSE 1650 


Reilly 


09/10/93 


92 CSE 1652*^ 


Reilly 


03/25/93 


92 CSE 1655 


Reilly 


07/22/93 


92 CSE 1656 


Gray 


07/23/93 


92 CSE 1663 


Reilly 


05/20/93 


92 CSE 1670 


Morrison 


06/25/93 


92 CSE 1671 


Mann 


07/22/93 


92 CSE 1703 


Becton 


06/16/93 


92 CSE 1704 


Reilly 


09/15/93 


92 CSE 1706 


Mann 


06/25/93 


92 CSE 1713 


Mann 


06/08/93 


92 CSE 1714 


West 


07/15/93 


92 CSE 1716 


Gray 


06/17/93 


92 CSE 1718 


Gray 


06/17/93 


92 CSE 1721 


Chess 


08/30/93 


92 CSE 1727 


Chess 


08/30/93 


92 CSE 1740 


Chess 


09/21/93 


92 CSE 1748 


Becton 


08/02/93 


92 CSE 1771 


West 


07/15/93 


92 CSE 1772 


Chess 


08/30/93 


92 CSE 1779 


Nesnow 


05/13/93 


93 CSE 0073 


Chess 


08/03/93 


93 CSE 0221 


West 


08/04/93 


93 CSE 0250 


Nesnow 


08/13/93 


93 CSE 0396 


Nesnow 


08/04/93 


93 CSE 0437 


Chess 


08/11/93 


93 CSE 0696 


Morrison 


09/23/93 


92 DCS 0577 


West 


03/15/93 


92 DCS 1181 


Gray 


05/04/93 


92 DCS 1200 


Gray 


03/29/93 


92 DCS 1271 


Rcilly 


05/05/93 


92 DCS 1783 


West 


08/04/93 


92 DHR 0608 


Chess 


08/27/93 


93 DHR 0651 


Becton 


09/10/93 


92 DHR 0658 


Morrison 


04/30/93 


92 DHR 1101 


Morgan 


07/26/93 


92 DHR 1109** 


Morgan 


06/22/93 



PUBLISHED DECISION 
REGISTER CITATION 



i 



i 



8:5 NCR 441 



8:4 NCR 392 
8:8 NCR 687 



i 



1341 



8:14 



NORTH CAROLINA REGISTER 



October 15, 1993 



CONTESTED CASE DECISIONS 



I 



) 



AGENCY 



of North Carolina, Inc., d/b/a BMA of Raefoni and Webb- 
Loh^icban Rentals 

Dialysis Care of North Carolina, Inc., d/b/a Dialysis Care of 
Cumberland County v. Human Resources, Division of Facility 
Services, Certificate of Need Section, and Bio-Medical 
Applications of Fayetteville d/b/a Fayetteville Kidney Center, 
Webb-Loha/ichan-Melton Rentals, Bio-Medical Applications 
of North Carolina, Inc., d/b/a BMA of Raeford and Webb- 
Lx>h»'ichan Rentals 

Bio-Medical Applications of North Carolina, Inc., d/b/a BMA 
of Raeford, Webb-Loha/ichan-Mellon Rentals, Bio-Medical 
Applications of North Carolina, Inc., d/b/a BMA of Fayetteville 
d/b/a F^etteville Kidney Center and Webb-Loha'ichan Rentals 
V. Human Resources, Division of Facility Services, Certificate of 
Need Section and Dialysis Care of North Carolina, Inc., d/b/a 
Dialysis Care of Hoke County 

Renal Care of Rocky Mount, Inc. v. Human Resources, Division of 
Facility Services, Certificate of Need Section, and Bio-Medical 
Applications of North Carolina, Inc., d/b/a BMA of Tarboro, 
Rocky Mount Nephrology Associates. Inc., Bio-Medical 
Applications of North Carolina, Inc., d/b/a BMA of Rocky Mount 
d/b/a Rocky Mount Kidney Center, and Rocky Mount Kidney Center 
Associates 

James H. Hunt Jr. v. Division of Medical Assistance 

Barbara Jones v. Human Resources 

Joyce P. Williams v. Human Resources 

Snoopy Day Care, Diane Hamby v. Child Day Care Licensing 

Cynthia Reed v. Human Resources 

The Neighborhood Center v. Human Resources 

Helm's Rest Home, Ron J. Schimpf/Edith H. Wilson v. Human Resources 

Jo Ann Kinsty v. NC Memorial Hospital Betty Hutton, Volunteer Svc. 

Amy Clara Williamson v. NC Mem Hosp Betty Hutton, Volunteer Svc. 

Betty Butler V. Human Resources 

Wayne Sandeis and Brenda Sandeis v. Human Resources 

Britthwen, Inc. v. Human Resources & Valdese Nuraing Home, Inc. 

Samuel Benson v. Office of Admin. Hearii^ for Medicaid 

Vemice Whisnant v. Human Resources 

Cabarrus Cty Dept. of Social Svcs. v. Human Resources 

Hannah F Tonkel v. Human Resources 

Fannie Lewis v. Human Resources 

Human Resources, Div. of Child Development v. Susan Amato 

Katie Kelly v. Human Resources 

Christopher Durrer, Wilson Memorial Hospital v. Human Resources 

Darryl A. Richardson v. Human Resources 

Home Health Prof., Barbara P. Bradsher, Admin v. Human Resources 

Sandra Gail Wilson v. Child Abuse/Neglect, Div. of Child Development 



CASE 
NUMBER 



ALJ 



DATE OF 
DECISION 



92 DHR 1110=** Morgan 06/22/93 



PUBLISHED DECISION 
REGISTER CITATION 



8:8 NCR 687 



92 DHR 1116*^ Morgan 06/22/93 



92 DHR 1120 Gray 



06/18/93 



8:8 NCR 687 



8:8 NCR 687 



92 DHR 


1145 


Becton 


05/13/93 


8:5 NCR 443 


92 DHR 


1192 


Nesnow 


04/02/93 


8:3 NCR 313 


92 DHR 


1275 


Gray 


03/15/93 




92 DHR 


1320 


Morgan 


05/21/93 




92 DHR 


1329 


Chess 


05/10/93 




92 DHR 


1375 


Chess 


08/02/93 




92 DHR 


1604 


Reilly 


05/10/93 




92 DHR 


1612 


Chess 


03/08/93 




92 DHR 


1613 


Chess 


03/08/93 




92 DHR 


1614 


Chess 


03/09/93 




92 DHR 


1699 


Reilly 


06/07/93 


8:7 NCR 632 


92 DHR 


1785 


Gray 


09/17/93 




93 DHR 0010 


Becton 


03/11/93 




93 DHR 0332 


Morgan 


09/23/93 




93 DHR 0373 


Morgan 


07/20/93 




93 DHR 0378 


Nesnow 


09/10/93 




93 DHR 0379 


Gray 


06/28/93 




93 DHR 0418 


Morgan 


08/26/93 




93 DHR 0441 


Chess 


07/26/93 




93 DHR 0566 


Chess 


09/17/93 




93 DHR 0679 


Becton 


09/30/93 




93 DHR 0737 


Chess 


09/23/93 




93 DHR 0782 


Nesnow 


09/09/93 





INSURANCE 



Carolyn M. Hair v. St Emplcyees Comprehensive Major Medical 
Scotland Memorial Hospital, Mary Home Odom v. Bd. /Trustees// 
St. of N.C. Teacheis' & St. Emp. Comp. Major Medical Plan, and 
David G. Devries, as Exec. Admin, of the N.C. Teachers* &. St. Emp. 
Comp. Major Medical Plan 
Phyllis C. Harris v. Teacheis' & St. Emp. Comp. Major Med. Plan 



92 INS 1464 
92 INS 1791 



93 INS 0197 



Chess 
Reilly 



Nesnow 



03/10/93 
08/19/93 



07/29/93 



JUSTICE 



> 



Philip B. Cates v. Justice, Attorney General's Office 
Jennii^ Michael Bostic v. Sheriffs' Ed. & Traning Stds. Comm. 
Colin Carlisle Mayers v. Sheriffs' Ed. & Training Stds. Comm. 
Jennings Michael Bostic v. Sheriffs' Ed. & Traning Stds. Comm. 
Michael Charles Kerehner v. Criminal Justice Ed & Trainii^ Stds Comm 
George Wilton Hawkins v. Criminal Justice Ed. &, Training Stds. Comm. 
Marilyn Jean Britt v. Criminal Justice Ed. & Training Stds. Comm. 
Tim McCoy Deck v. Criminal Justice Ed. & Trainir^ Stds. Comm. 
Richaid Zander Frink v. Criminal Justice Ed. & Traning Stds. Comm. 
Sherri Ferguson Revis v. Sheriffs' Ed. & Trainii^ Stds. Comm. 



90 DOJ 0353 


Morgan 


08/30/93 


92 DOJ 0656*' 


West 


06/22/93 


92 DOJ 0761 


Morrison 


05/10/93 


92 DOJ 0829*' 


West 


06/22/93 


92 DOJ 0869 


Morgan 


08/11/93 


92 DOJ 1081*' 


Morgan 


07/09/93 


92 DOJ 1088 


Morrison 


03/16/93 


92 DOJ 1367 


Chess 


04/01/93 


92 DOJ 1465 


Nesnow 


05/28/93 


92 DOJ 1756 


Gray 


03/23/93 



8:13 NCR 1281 



8:14 



NORTH CAROLINA REGISTER 



October 15, 1993 



1342 



CONTESTED CASE DECISIONS 



AGENCY 



Mark Thomas v. Sheriffs* Ed. & Training Standards Commission 

George Wilton Hawkins v. Sheriffs' Ed. & Training Stds. Comm. 

Lonnie Allen Fox v. Sheriffs' Ed. &. Trainir^ Standards Commission 

Alarm Systems Licensing Bd. v. Eric Hoover 

Alarm Systems Licensing Bd. v. Vivian Darlene Gaither 

Rebecca W. Stevenson v. Criminal Justice Ed. & Trainir^ Stds. Comm. 

Lloyd Harrison Bryant Jr. v. Criminal Justice Ed &. Training Stds Comm 

William B. Lipscomb v. Private Protective Services Boaid 

Private Protective Svcs. Bd. v. FroJ D. Rector 

Private Protective Svcs. Bd. v. Alan D. Simpson 

Carl Michael O'Byme v. Alarm Systems Licensing Boaid 



CASE 




DATE OF 


PUBLISHED DECISION 


>rUMBER 


ALJ 


DECISION 


REGISTER CITATION 


93DOJ 0151 


West 


04/21/93 




93 DOJ 0156*' 


Morgan 


07/09/93 




93DOJ 0196 


Morrison 


08/09/93 




93 DOJ 0201 


Bee ton 


07/12/93 




93 DOJ 0202 


Chess 


05/10/93 




93 DOJ 0357 


Morrison 


09/13/93 




93 DOJ 0377 


ReiUy 


08/31/93 




93 DOJ 0458 


Morrison 


06/01/93 




93 DOJ 0479 


Mann 


08/19/93 




93 DOJ 0480 


West 


07/21/93 




93 DOJ 0844 


Nesnow 


09/08/93 


8:13 NCR 1300 



i 



LABOR 



Greensboro Golf Center, Inc. v. Labor 
Ronald Dennis Hunt v. Labor 
Jeffrey M. McKinnt^ v. Labor 

MORTUARY SCIENCE 

Boaid of Mortuary Science v. Triangle fnineral Chapel. Inc. 
PUBLIC INSTRUCTION 



92 DOL 0204 


Nesnow 


04/15/93 


92 DOL 1319 


Morgan 


06/17/93 


92 DOL 1333 


Morrison 


06/21/93 



92 BMS 1169 



Reilly 



04/29/93 



8:4 NCR 396 



Frances F Davis, Parent of Joseph E. Davis v. Public Instruction 93 EDC 0628 Mann 07/29/93 

Donna Marie Snyder v. Public Instruction 93 EDC 0731 Nesnow 09/16/93 

STATE PERSONNEL 



Frances K. I^te v. Transportation 

Lawrence D. Wilkie, Jerry R. Evans, Jules R. Hancart. 

James H. Johnson, James D. Fishel v. Justice 
Lawrence D. Wilkie, Jerry R. Evans. Jules R. Hancart, 

James H. Johnson, James D. Fishel v. Justice 
Lawrence D Wilkie, Jerry R. Evans, Jules R. Hancart, 

James H. Johnson, James D. Fishel v. Justice 
Lawrence D. Wilkie, Jerry R. Evans, Jules R. Hancart, 

James H. Johnson, James D. Fishel v. Justice 
Laft'rence D. Wilkie, Jerry R. Evans, Jules R. Hancart. 

James H. Johnson, James D. Fishel v. Justice 
Bemie B. Kellly v. Correction 
Brenda G. Mitchell v. Correction 

Adolph Alexander Justice Jr. v. Motor Vehicles, Transportation 
Clayton Brewer v. North Carolina State University 
Sherman Daye v. Transportation 
Donnie M. WTiite v. Correction 

Gregory Samuel F^rker v. Environment. Health. & Natural Resources 
Renee E. Shepherd v. Winston-Salem Stale University 
Eva Dockery v. Human Resources 

Lee P Crosby v. Michael Kelly William Meyer and EHR 
William Marshall Boyd Jr v. County Commissioners of Hyde & 

Certain Board of Health Members 
Gregory Samuel I^rker v. Environment, Health, &. Natural Resources 
Willie Granville Baili^ v. Wins ton-Sal em Slate University 
Maltie W Smith v. Slate Agricultural and Technical University 
Julia Spinks v. Environment, Health, & Natural Resources 
James B. Price v. Transporlation 
L Cary Naillir^; v. UNC-CH 
Deborah Barber v. Correction 
Laveme B. Hill v. Transporfation 
Timmy D. Wilkins v. Transporlation 

Sarah W. Britt v. Human Resources. C.A. Dillon School, CPS 
Charles Robinson v. Revenue 

Anna L. Spencer v. Mecklenbuig County Area Mental Health 
Herman James Goldstein v. UNC-Chapel Hill el al. 
Glinda C. Smith v. Wildlife Resources Commission 
Cindy G. Bartlett v. Correction 
William Kenneth Smith Jr. v. Broughton Hospital (Human Resources) 



88 OS? 0340 


Morrison 


05/03/93 




90 OSP 1064** 


Mann 


05/04/93 




90 OSP 1065** 


Mann 


05/04/93 




90 OSP 1066** 


Mann 


05/04/93 




90 OSP 1067** 


Mann 


05/04/93 




90 OSP 1068** 


Mann 


05/04/93 




91 OSP 0344 


Morrison 


05/27/93 




91 OSP 0625 


West 


03/08/93 


8:1 NCR 75 


91 OSP 0860 


Chess 


07/19/93 




91 OSP 0941 


West 


04/02/93 


8;3 NCR 306 


91 OSP 0951 


West 


05/07/93 




91 OSP 1236 


Morgan 


04/05/93 




91 OSP 1344»> 


Chess 


05/20/93 




91 OSP 1391 


Morgan 


04/28/93 




92 OSP 0010 


Chess 


05/03/93 




92 OSP 0056 


Gray 


06/07/93 




92 OSP 0090 


Gray 


08/25/93 




92 OSP 0188*= 


Chess 


05/20/93 




92 OSP 0285 


Morrison 


03/10/93 




92 OSP 0298*'- 


ReiUy 


09/14/93 




92 OSP 0313 


Bee ton 


04/12/93 


8:4 NCR 382 


92 OSP 0375 


Gray 


04/13/93 




92 OSP 0394 


Bee ton 


04/20/93 




92 OSP 0396 


Chess 


03/04/93 




92 OSP 0431*" 


West 


03/08/93 




92 OSP 0432*' 


West 


03/08/93 




92 OSP 0455 


West 


05/26/93 


8:6 NCR 484 


92 OSP 0553 


Morgan 


07/21/93 




92 OSP 0584 


Bee ton 


08/16/93 




92 OSP 0634 


Morrison 


05/04/93 




92 OSP 0653 


Morrison 


03/12/93 




92 OSP 0671 


Morgan 


06/08/93 




92 OSP 0684 


Bee ton 


05/10/93 





i 



i 



1343 



8:14 



NORTH CAROLINA REGISTER 



October 15, 1993 



CONTESTED CASE DECISIONS 



AGENCY 



Larry O. Nobles v. Human Resources 

Beatrice Wheless v. Lise M. Miller, University Payroll Otf.. NC St. Univ. 

Tracey Hall v. N.C. Central U., OflF. of Scholaiship & Student Aid 

Sondra Williams v. Winston-Salem State University 

Willie Thomas Hope v. Transporfation 

David Scales v. Correction 

Suzanne Ransley Hill v. Environment, Health, & Nat. Res. 

Herman James Goldstein v. UNC-Chapel Hill et al. 

Beatrice Wheless v. Lise M. Miller, University F^roU Off., NC St. Univ. 

John B. Sauls v. Wake County Health Department 

Patti G. Newsome v. Transportetion 

Nancy McAllister v. Camden County Department of Social Services 

Gilbert Jaeger v. Wake County Alcoholism Treatment Center 

Joseph Henry Bishop v. Environment, Health, & Natural Res. 

Glenn D. Fuqua v. Rockingham County Board of Social Services 

Willie L. Hudson v. Correction 

Brcnda K. Campbell v. Emplcyment Security Commission 

Christie L. Guthrie v. Environment, Health, &. Natural Resources 

Sharon Reavis v. Crime Control &. Public Safety 

James B. Price v. Transportation 

Jerry L. Jones v. N.C.S.U Physical Plant 

Mattie W. Smith v. State Agricultural and Technical University 

Roland W Holden v. University of North Carolina at Chapel Hill 

Betty Bradsher v. UNC-CH 

Anthoiiy M. Little v. Human Resources. John Umstead Hospital 

Jamal Al Bakkat-Morris v. Glerm Sexton (DSS) 

Rebecca Beauchesne v. University of North Carolina at Chapel Hill 

Brcnda Kay Barnes v. Human Resources 

Larry G. Riddle v. Correction, Division of Prisons 

Stevie E. Dunn v. P^lk Youth Center 

Buford D. Vieregge Jr v. N.C. Stale University, University Dinir^ 

Dorothy Arm Harris v. Correction 

Brcnda B. Miles v. University of North Carolina Chapel Hill 

Deborah J. Whitfield v. Caswell Center 

Karen Canter v. Appalachian State University 

Terry Steve Brown v. Iredell County Health Department 

Barbara A. Johnson v. Human Resources 

Carrie P. Smith v. County of Stanly 

George W. Allen v. Human Resources. Correction, Agri & EHNR 

William G. Fisher v. St Bd of Ed, Albermarie City Schools & Bd of Ed 

Grace Jean Washington v. Caswell Center 

Clifton E. Simmons v. Correction 

Willie L. James v. Caswell Center 

L^ing S. Rodgers v. C.A. Dillon, Division of Youth Services 

Richard E. Howell v. Correction, Wayne Correctional Center 

Brian Dale Bamhaidt v. State Highway Patrol 

F.R. "Don" Bowen v. Human Resources 

Michael L. Pegram v. Correction 

Jerry D. Doss Sr v. Correction 

Debbie Renee Robinson v. CoiTcction 

Linda R. Wharton v. N.C. A & T University 

Michael L. Pegram v. Correction 

Hubert L. Holmes v. Transportation 

Timothy E. Blevins v. UNC A/K/A Western Carolina University 

Xantippe BlackiAcU v. Human Resources, Murdoch Center 

Harold Kovolenko v. Lyrm C. Phillips, Director of Prisons 

Daniel Thomas Wheeler, Kye Lee Wheeler v. Caldwell County 

Department of Social Services 
Kathleen E. Conran v. New Bern Police Dept., City of New Bern; and 

City of New Bern Police Civil Service Board 
Dana Phillips v. Administrative Office of the Courte 



CASE 




DATE OF 


PUBLISHED DECISION 


NUMBER 


ALJ 


DECISION 


REGISTER CITATION 


92 OSP 0732 


Mann 


04/23/93 




92 OSP 0744*"' 


Morgan 


07/16/93 




92 OSP 0815 


Morgan 


09/16/93 




92 OSP 0847 


Morrison 


08/06/93 




92 OSP 0947 


Morgan 


03/23/93 




92 OSP 0989 


Chess 


06/24/93 




92 OSP 0992 


ReiUy 


03/18/93 


8:2 NCR 224 


92 OSP 1047 


Morrison 


05/04/93 




92 OSP 1 124*"' 


Morgan 


07/16/93 




92 OSP 1142 


Reilly 


03/08/93 


8:1 NCR 88 


92 OSP 1180 


Becton 


09/22/93 


8:14 NCR 1346 


92 OSP 1185 


Chess 


09/07/93 




92 OSP 1204 


Reilly 


05/10/93 




92 OSP 1243 


Reilly 


03/05/93 




92 OSP 1318 


Morrison 


08/03/93 




92 OSP 1468 


Becton 


05/26/93 




92 OSP 1505 


Morrison 


03/17/93 




92 OSP 1555 


Becton 


05/31/93 




92 OSP 1606 


Morrison 


08/19/93 


8:12 NCR 1163 


92 OSP 1657 


Mann 


03/19/93 




92 OSP 1661 


Chess 


07/06/93 




92 OSP 1691*"= 


Reilly 


09/14/93 




92 OSP 1715 


Becton 


08/30/93 


8:13 NCR 1292 


92 OSP 1733 


Becton 


03/30/93 




92 OSP 1734 


Becton 


09/01/93 




92 OSP 1741 


Becton 


03/24/93 




92 OSP 1767 


Becton 


10/01/93 




92 OSP 1768 


Morrison 


03/17/93 




92 OSP 1774 


Gray 


04/26/93 




92 OSP 1789 


Becton 


04/19/93 




92 OSP 1796 


Morrison 


05/27/93 




93 OSP 0013 


Morrison 


09/15/93 




93 OSP 0033 


Morrison 


09/10/93 




93 OSP 0064 


West 


09/20/93 




93 OSP 0079 


Reilly 


06/15/93 




93 OSP 0101 


Morgan 


08/06/93 




93 OSP 0103 


Morrison 


03/17/93 




93 OSP 0109 


Becton 


04/01/93 




93 OSP 01 11 


Reilly 


04/16/93 




93 OSP 0134 


Becton 


04/20/93 




93 OSP 0153 


Morgan 


06/03/93 




93 OSP 0159 


Morrison 


04/21/93 




93 OSP 0171 


Morgan 


05/27/93 




93 OSP 0177 


West 


04/21/93 




93 OSP 0245 


Gray 


08/25/93 




93 OSP 0251 


Reilly 


07/27/93 




93 OSP 0253 


Morgan 


08/06/93 




93 OSP 0275*» 


Reilly 


06/28/93 




93 OSP 0287 


Gray 


05/17/93 




93 OSP 0383 


Nesnow 


06/07/93 




93 OSP 0456 


Chess 


09/22/93 




93 OSP 0472** 


Reilly 


06/28/93 




93 OSP 0572 


Reilly 


08/17/93 




93 OSP 0604 


Morgan 


09/29/93 




93 OSP 0632 


Reilly 


09/01/93 




93 OSP 0697 


Nesnow 


09/08/93 




93 OSP 0752 


Nesnow 


09/16/93 




93 OSP 0797 


Morrison 


09/21/93 




93 OSP 0822 


West 


09/09/93 





STATE TREASURER 



Juanita M. Braxton v. Bd. of Trustees/Teachers' & St Emp Ret Sys 
Herman D. Brooks v. Bd of Trustees/Teachers' &. St Emp Ret Sys 
Henrietfa Sandlin v. Teachers' & State Emp Comp Major Medical Plan 
Frances Billiogsley v. Bd/Truslees/Teachers' &. St. Emp. Ret. Sys. 



91 DST 0017 


West 


09/07/93 


91 DST 0566 


Giay 


04/13/93 


92 DST 0305 


Morgan 


04/12/93 


92 DST 0996 


West 


09/20/93 



8.14 



NORTH CAROLINA REGISTER 



October 15, 1993 



1344 



CONTESTED CASE DECISIONS 



AGENCY 



Dennis Willoughty v. Bd./Truslces/Teacheis' & St. Emp. Ret. Sys. 
Mary Alyce Cannichael v. BdH'rusteesneacheiB' & St Emp Ret Sys 
W. Rex Perry v. BdATrustccs/TeacheiB' &. St Emp Ret Sys 
Rory Dale Swiggett v. Bd./Trustces/N.C. Local Govtl. Emp. Ret. Sys. 

TRANSPORTATION 



CASE 
NUMBER 



92 DST 1439 

92 DST 1506 

93 DST 0133 
93 DST 0198 



AU 



DATE OF 
DECISION 



West 09/20/93 

Chess 04/08/93 

West 08/12/93 

West 09/28/93 



PUBLISHED DECISION 
REGISTER CITATION 



8:14 NCR 1356 



8:11 NCR 992 
8:14 NCR 1360 



< 



Yates Construction Co. . Inc. v. Transportetion 
UNIVERSITY OF NORTH CAROLINA HOSPITALS 



92 DOT 1800 Morgan 03/25/93 



Constance V. Graham v. UNC Hospital 
Jacqueline Rorcnce v. UNC Hospitals 



93 UNC 0269 
93 UNC 0355 



Morgan 
Bee ton 



07/20/93 
06/16/93 



i 



i 



1345 



8:14 



NORTH CAROLINA REGISTER 



October 15, 1993 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 
COUNTY OF GUILFORD 



IN THE OFFICE OF 

ADMINISTRATrVE HEARINGS 

92 0SP 1180 



PATTI G. NEWSOME, 
Petitioner, 



NORTH CAROLINA DEPARTMENT OF 
TRANSPORTATION, 
Respondent. 



RECOMMENDED DECISION 



The Petitioner filed a Petition for a contested case liearing on October 12, 1992, alleging that the 
Respondent discriminated against her on the basis of her gender when it foiled to promote her to the position 
of County Maintenance Engineer in Caldwell County. The Respondent asserted in its Prehearing Statement, 
filed on November 19, 1992, that the individual promoted to the position of County Maintenance Engineer 
was better qualified than the Petitioner and that there was no discrimination against the Petitioner by reason 
of her gender. 

This matter was heard before Brenda B. Becton, Administrative Law Judge, on May 6 and 7, 1993, 
in High Point, North Carolina. At the conclusion of the hearing, the parties were afforded an opportunity to 
file written post-hearing submissions. 

APPEARANCES 

Petitioner: Judith G. Behar, Attorney, Greensboro, North Carolina. 

Respondent: E. Burke Haywood, Assistant Attorney General, and Richard G. Sowerby, Jr., 
Assistant Attorney General, North Carolina Department of Justice, Raleigh, North 
Carolina. 

ISSUE 

Whether the Respondent discriminated against the Petitioner on the basis of her gender when it failed 
to promote her to the County Maintenance Engineer position in Caldwell County. 

STIPULATIONS 

The parties stipulated to the following: 

1 . All parties are properly before the court and the court has jurisdiction of the parties and the subject 
matter of this action. 

2. All parties have been correctly designated. 

3. The Petitioner is a permanent employee of the Respondent. 

4. The Petitioner is a white female. 

5. The Petitioner applied for a position as County Maintenance Engineer in Division 1 1 in December, 



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NORTH CAROLINA REGISTER 



October 15, 1993 



1346 



■BUBIHillJIUWW 



CONTESTED CASE DECISIONS 



1991. 

6. Although the Petitioner was interviewed for the position, Kelly Winkler, a white male, was awarded 
the position. 

7. Of the 72 County Maintenance Engineers employed by the Respondent, none is female. 

8. The position requires a four-year degree in Civil Engineering and three years of progressive 
experience; or a four-year degree in Engineering Technology and four years of progressive 
experience; or an equivalent combination of education and directly related experience. 

9. Kelly Winkler received his Bachelor of Science in Civil Engineering from N.C.S.U. in December, 
1989. 

10. Since February, 1991, only two women, one of whom is the Petitioner, have applied for the County 
Maintenance Engineer position. 

1 1 . Tlie Petitioner has a two year degree in Civil Engineering Technology. 

FINDINGS OF FACT 

From official documents in the file, sworn testimony of the witnesses, and other competent and 
admissible evidence, it is found as a fact that: 

1. The Petitioner was first employed by the Respondent as an Engineering Aide in the Construction 
Department in 1976. She was promoted to Engineering Technician I in the Construction Department 
in 1978, to Highway Inspector I in 1979, to Construction Technician II in 1984, and to Construction 
Technician III in 1988. Several months later, the Petitioner laterally transferred to Engineering 
Technician III in Traffic Services. As a result of the 1991 Engineering Study, her position was 
upgraded to Traffic Technician IV, the position which she currently holds. 

2. On December 7, 1991, the Petitioner applied for the position of County Maintenance Engineer 
(Position No. 1105) in Caldwell County. 

3. The Petitioner was interviewed for the position on December 10, 1991. 

4. On March 7, 1992, the Respondent advised the Petitioner that the position she sought had been filled. 

5. The position was filled by Kelly Winkler, a white male. 

PETITIONER'S QUALIFICATIONS 

7. The Petitioner has a two-year Associate in Applied Science in Civil Engineering Technology degree 
from Guilford Technical Community College (hereinafter "GTCC"). She graduated from (JPCC with 
a grade point average of 3.81 out of a possible 4.(X). All of the Petitioner's courses at GTCC were 
related to her engineering degree. 

8. The Petitioner became a Certified Concrete Technician in July, 1979. 

9. The Petitioner received a Certificate in Surveying from GTCC in August, 1986. 

10. The Petitioner completed the Respondent's 16 week Highway Engineering Concepts course. 
Satisfactory completion of this course demonstrates an ability to understand and analyze complex 
engineering situations that might be encountered in the field. The Petitioner completed this course 
with a grade of 86.4. 



1347 8:14 NORTH CAROLINA REGISTER October 15, 1993 



CONTESTED CASE DECISIONS 



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11. Petitioner completed two courses in electricity at Forsyth Technical Community College. 

12. TTie Petitioner has completed numerous training courses and workshops offered by the Respondent, 
including the following: Construction Mathematics, Highway Plan Reading, Multimedia First Aid 
Training, Basic Concrete, Nuclear Density Training, Fleet Safety Training, Asphalt Construction and 
Inspection, Radiological Monitors, Basic Cardiac Life Support, Basic Highway Engineering, Basic 
Construction Surveying, Basic Inspection, Structure Inspection, Supervisory Course I, Asphalt 
Certification, and Computer and Data Security. 

13. As reflected in her performance reviews, the Petitioner's work performance has been outstanding, 
requiring little supervision and her work experience has been versatile, including opportunities to 
develop a good knowledge of engineering. 

14. The Petitioner possesses extensive knowledge of different material types; knowledge of and skills 
necessary for civil engineering relative to construction; knowledge of mathematics relevant to field 
surveying and engineering; knowledge of the use of surveying instruments; ability to formulate, 
interpret, and explain complex instructions, including plans and specifications and obtain adherence 
to them; and knowledge of contract administration. As early as 1980, she assumed responsibilities 
as senior inspector on a project. 

15. The Petitioner has applied to take the Engineer in Training exam, which is a prerequisite to becoming 
a licensed Professional Engineer. She will be eligible to take the exam next spring. 

16. The Petitioner has established good relationships with contractors and Department of Transportation 
("DOT") employees and has successfully negotiated contract changes with contractors when 
necessary. She administered the logo signing program which required her to confer with 
representatives of local businesses, explain the program to them, prepare contracts, collect fees, 
supervise the bidding of construction contracts, and supervise the performance of contracts. 

17. Robert Stone, a Resident Engineer, supervised the Petitioner when she worked as a project inspector. 
At that time, she worked independently and her work was generally of a high standard. 

18. Mr. Stone testified that drainage work, pipe culvert installation work, seeding and reforestation work, 
guard rail repair, and bridge guard rail work were all maintenance jobs. He testified that the 
Petitioner did these jobs as a highway inspector under his supervision. He also testified that they also 
did concrete pavement slab removal and replacement, shoulder construction, asphalt resurfacing, 
thermoplastic pavement markings, catch basin and drop inlet installation, curb and gutter installation, 
and construction of traffic controls and that these jobs were also maintenance jobs. Both the 
Respondent's Maintenance and the Construction departments perform these kinds of operations. The 
Petitioner performed these operations under Mr. Stone's supervision. 

19. Mr. Stone testified that during one period when his office was swamped with work, purchase order 
contracts were assigned to the Petitioner and she handled purchase orders normally handled by a 
resident engineer, without supervision by him. 

20. Larry Young is a Transportation Engineer I and the Petitioner's supervisor Mr. Young testified that 
the Petitioner administers construction contracts and works with the technician assigned to work with 
her on the project. 

21. Mr. Young testified that the Petitioner works with engineers, doing traffic studies, administering 
contracts, and working on the logo program. He further testified that she communicates very well 
with the people she comes in contact with. She has provided training to engineers in the training 
program, instructing them on doing traffic studies, administering the logo program, and administering 
purchase order contracts. 



8:14 NORTH CAROLINA REGISTER October 15, 1993 1348 



CONTESTED CASE DECISIONS 



22. When the Petitioner was interviewed by Roger Gates, she discussed her experience with him, 
answered questions about her knowledge of surveying and familiarity with construction machinery. 
During the interview, Mr. Gates did not indicate that the Petitioner lacked any qualifications necessary 
for the County Maintenance Engineer ("GME") position. 

23. The Petitioner was subsequently interviewed for other GME positions and was judged qualified by 
the interviewer; however, after she was interviewed by Steven Ivey, the District Engineer for 
Respondent's Division 7, he wrote to her to advise her that the Respondent's Personnel Department 
did not consider her to have met the minimum qualifications requirements for the GME position. 

WINKLER'S QUALIFICATIONS 

24. Kelly Winkler graduated magna cum laude from North Carolina State University in December, 1989, 
with a four-year Bachelor of Science degree in Civil Engineering. 

25. Mr. Winkler graduated with a 3.80 grade point average (out of possible 4.00) in civil engineering and 
a 3.6 grade point average overall. 

26. Mr. Winkler was hired by the Respondent on January 20, 1990, as an Engineering Associate. 

27. Mr. Winkler completed the Respondent's Highway Engineer Associate Program, Advanced 
Management Course, and Highway Engineering Concepts Course. 

28. Mr. Winkler spent four and a half months in the Maintenance Department during his Engineering 
Training program, working with Roger Gates, his present supervisor. 

29. In the Engineering Training Program, Mr. Winkler spent four and a half months working in the field 
and with various engineers in the Maintenance Department, four and a half months in the 
Construction Department, including 10 weeks in surveying and some time working with a survey 
party, working with the computer planning the initial roadway survey; ten weeks in the Structural 
Design department in Raleigh; ten weeks in Roadway Design as a draftsman and working on the 
computer, looking up standards and applying them to the design of new roadways; did a lot of 
estimating, then spent some time in Traffic working with signals and geometries, traffic control, 
traffic engineering in general, traffic studies, and railroad crossings studies. 

30. As a staff engineer, Mr. Winkler spent six months (at the time of his application for the GME 
position) working on roadway encroachment contracts and Adopt A Highway agreements. He 
administered cleaning contracts, handled subcontract agreements, helped do estimates for contracting 
services and new additions to the system, and gathered any kind of information that the division 
engineer, division maintenance engineer, or division construction engineer needed. 

31. Mr. Winkler has some experience with purchase order contracts, but none involving road activities. 
As a staff engineer, he handled purchase order contracts for building eight service stations. 

32. Mr. Winkler had no experience with scheduling, organizing and assigning work to accomplish 
maintenance plans and establish schedules. He had no experience with departmental budgeting, 
training others, setting work standards for other employees, reviewing other people's work, 
counseling and disciplining employees regarding work habits and the quantity and quality of work. 

33. Mr. Winkler was familiar with the policies and procedures and the federal and state laws regarding 
highway maintenance. 

34. At the time he applied for the Caldwell County Maintenance Engineer position, Mr. Winkler had 
never been responsible for federal contract compliance. 



1349 8:14 NORTH CAROLINA REGISTER October 15, 1993 



CONTESTED CASE DECISIONS 



I 



) 



^ 



35. Mr. Winkler has taken and passed the Engineer in Training examination. 

36. Mr. Winkler was promoted to Transportation Engineer I on July 20, 1991. 

37. Except for his Engineering Associate training program, Mr. Winkler had no training in personnel 
matters and little experience supervising work crews. 

WEIGHING OF QUALIFICATIONS 

38. Guidelines developed by the Office of State Personnel (hereinafter "OSP") provide that when the 
primary base level education requirement is graduation from a four-year college or university, the 
equivalency in experience will be two years of directly related experience for every one year of 
formal education required. (Respondent's Exhibit Book II, exhibit 11, p. 2). These OSP guidelines 
have not been promulgated as rules or regulations codified in the North Carolina Administrative 
Code. 

39. The Petitioner's two-year degree in Civil Engineering Technology was two years short of the four 
year degree which was the primary base level educational requirement for County Maintenance 
Engineer position. 

40. Applying the OSP guidelines, the Respondent determined that the Petitioner needed two years of 
"directly related experience" for every year of formal education she lacked. 

41 . According to the OSP equivalency guidelines, in order to meet the posted requirements, the Petitioner 
needed seven (7) years of progressive transportation engineering experience: four years of directly 
related experience to meet the educational requirement plus the three years of work experience 
required by the job posting. 

42. For the purposes of a position at the Engineering I level, the Respondent and OSP deem "progressive 
transportation engineering experience" to mean experience at the Technician III level or above. 

43. Applying the equivalency formula, the Respondent determined that the Petitioner's four (4) years of 
progressive transportation experience at the Technician III level or above, was three (3) years short 
of the seven years of experience required by the posting for an applicant with an associate engineering 
degree. 

44. Mr. Winkler met the primary base level education requirement for the County Maintenance Engineer 
position. 

45. Mr. Winkler's two years of progressive transportation engineering experience left him one year short 
of the three years of work experience required by the job posting. 

46. Notwithstanding his failure to meet the posted job qualifications, the Respondent allowed Mr. Winkler 
to work against the position of County Maintenance Engineer at a reduced salary. 

47. Other OSP guidelines provided to the Respondent suggest that "should a posting for a County 
Maintenance Engineer position yield no qualified applicants, DOT may work individuals against the 
County Maintenance Engineer class as a County Maintenance Supervisor (SC 71) until the employee 
has demonstrated that he/she is actually performing II level engineering work and has completed the 
necessary training as measured by DOT. In those instances where the employee is serving in a work- 
against capacity, has completed the DOT training program and still is not performing up to 
expectations, the position would be reallocated to the County Maintenance Supervisor class." 
(Respondent's Exhibit Book II, exhibits 12 & 14). 

48. Although there was testimony off'ered that OSP does not permit persons to be placed in a training 



8:14 NORTH CAROLINA REGISTER October 15, 1993 1350 



CONTESTED CASE DECISIONS 



progression for more than two years, no rule or regulation to this effect was identified by the 
Respondent. 

OTHER CONSroERATIONS 

49. None of the 72 County Maintenance Engineers employed by the Respondent is a female. 

50. As a result of an engineering study implemented in February, 1991, the County Maintenance Engineer 
position was upgraded two steps. One of the goals of the upgrading was to attract professional level 
people with bachelor of science degrees in civil engineering. 

51. Twenty County Maintenance Engineer positions have been filled since February, 1991. 

52. Of the approximately 156 applicants for the twenty positions, only five applications were from 
females. 

53. Four of the five applications submitted by females were submitted by the Petitioner. 

54. Of the twenty successful applicants for the County Maintenance Engineer positions filled since 
February, 1991, all twenty were working for the Respondent as either Engineers, Engineering 
Associates, or Road Maintenance Supervisors. 

55. None of the twenty successful applicants for the County Maintenance Engineering positions were 
Technicians at the time they were promoted. 

56. Fourteen of the twenty successful applicants held a bachelor's or master's degree in Engineering or 
Engineering Technology. 

57. The five successful applicants who did not have a four-year engineering degree had at least eighteen 
or more years with the Respondent or the Virginia Department of Transportation. 

58. John C. Jarrell, a high school graduate with two years of college towards a degree in business 
administration, was made a County Maintenance Supervisor in Alexander County at salary grade 71, 
with progression to County Maintenance Engineer outlined. 

59. The County Maintenance Supervisor is a lower level position than County Maintenance Engineer. 

60. Mr. Jarrell applied for a County Maintenance Engineer position in Alexander County. He was given 
a County Maintenance Supervisor position by means of an agreement between OSP and the 
Respondent allowing a downgrading of a position when there are no qualified applicants. 

61. Kelly Winkler, the successful applicant for the position which is the subject matter of this grievance, 
also applied for the County Maintenance Engineer position in Alexander County. 

62. In addition to Mr. Winkler, Billy Trivette applied for the Alexander County Maintenance Engineer 
position; Mr. Trivette had a B.S.C.E. and two years with the Respondent. Another applicant for the 
position also had a 4 year engineering degree and five years DOT work experience. 

63. At the time Mr. Jarrell applied for the County Maintenance Engineer position, he was a Road 
Maintenance Supervisor which is comparable in pay to a technician position, and he had 24 years of 
DOT work experience. 

64. Joseph K. Wilson was made County Maintenance Engineer on June 22, 1991. Mr. Wilson had 1 
year, 9 months experience, a B.S.C.E. and was an Assistant District Engineer at the time of his 
promotion. 



1351 8:14 NORTH CAROLINA REGISTER October 15, 1993 



CONTESTED CASE DECISIONS 



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65. Darrick Sheffield Lee was made County Maintenance Engineer in Martin County on January 5, 1991 . 
Mr. Lee had approximately 7 months experience with the Respondent, and approximately 2 years of 
experience with a private firm performing engineering work. He held a B.S.C.E. and was a Highway 
Engineer I at the time of his promotion. 

66. William Henry Adkins was made County Maintenance Engineer in Wilson County on August 1, 1992. 
At the time of his promotion, Mr. Adkins was a Road Maintenance Supervisor. Mr. Adkins is a high 
school graduate with 25 years of experience at the Virginia Department of Transportation. Much of 
Mr. Adkins' experience at Virginia Department of Transportation was in the area of maintenance. 

67. Although Division 11 ranks second among the Respondent's fourteen Highway Divisions in terms of 
female utilization, there are no female engineers at any level in Division 1 1 . 

68. TTie nontraditional positions held by females in Division 11 include a Technician IV, a Machine 
Operator IV, a truck driver position or highway maintenance position, and technicians in the 
Construction Department. 

69. Eleven percent of Division 1 1 's employees are female. 

70. The highest ranking position held by a female in Division 11 is a Technician IV position. 

71. Mr. Wade Hoke, the Division Engineer for Division 11 has hired 26 engineers in his division, all of 
whom were male. He has had two female applicants for engineering positions, one of them the 
Petitioner, and the other a graduate engineer whom Mr. Hoke judged to be qualified. 

72. The Respondent's Affirmative Action Plan is subject to audit and approval by the Federal Highway 
Administration ("FHWA")and OSP. An annual audit begins in October of each year. One measure 
of the program's success is statistical. With respect to promotions, the FHWA auditor's benchmark 
is a promotion rate equal to the minority's representation in the Respondent's work force. On 
September 3, 1992, females represented approximately 18% of the Respondent's work force. For 
the audit period of October 1, 1991 through September 30, 1992, the promotion rate for females was 
approximately 19%. The FHWA auditor found this rate acceptable. 

73. The Respondent has fallen short of its parity goals for females. The Respondent attributes its failure 
to meet its goal to the difficulty it has had recruiting females to work as heavy equipment operators, 
dump truck drivers, and the feilure of the technical and engineering educational process to attract 
sufficient females to meet EEO requirements where technician and engineering jobs are concerned. 

74. The Respondent recruits for minority and female B.S.C.E. graduates from the Washington, D.C. 
area, and all over the southeast, as far south as Louisiana. After completing the Respondent's 
Training Program, B.S.C.E. graduates apply for or are placed in Engineer I level positions. Female 
engineers, by preference and interest, go into Roadway Design, Bridge Design, Traffic Engineering 
and Planning. They do not generally apply for jobs in the Divisions, although several female 
engineers have become Resident Construction Engineers. 

75. Division 1 1 has not actively recruited females for engineering positions. 

76. As of June, 1992, Division 11 had 597 employees, 65 of whom were female. None of the females 
are employed in engineering positions. 

77. There was no evidence of the Respondent attempting to correct the deficiency in meeting its parity 
goals by allowing women occupying technician positions such as the Petitioner's to work against 
engineering positions as has been done in the past with male employees. 

Based on the foregoing Findings of Fact, the undersigned Administrative Law Judge makes the 



8:14 NORTH CAROLINA REGISTER October 15, 1993 1352 



CONTESTED CASE DECISIONS 



following: 

CONCLUSIONS OF LAW 

1 . Discrimination on the basis of gender is an unlawful employment practice. N.C. Gen. Stat. < < 126- 
16, -17, -36 and < 143-422.2 

2. In order to prove a claim of sex discrimination, the Petitioner must establish a prima facie case by 
proving by the preponderance of the evidence that some adverse employment action was taken against 
her on account of her gender. To rebut the presumption of discrimination, the employer must clearly 
articulate the non-discriminatory reason for the adverse employment action. Once the employer has 
offered non-discriminatory reasons for its action, the employee must prove that the employer's stated 
reasons are, in fact, only a pretext for intentional discrimination. McDonnell Douglas Coi-p. y^ 
Green , 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed. 2d 668 (1973). 

3. Once an employee shows that gender was a motivating factor in an employment decision, the 
employer may avoid a finding of liability only by proving that it would have made the same decision 
even if it had not allowed gender to play such a role. Price Waterhouse y^ Hopkins , 490 U.S. 228, 
109 S.Ct. 1775, 104 L.Ed. 2d 268 (1989). 

4. In promotion cases, the Petitioner creates an initial inference of illegal motivation by establishing the 
following: (i) the Petitioner was within a class protected by the law; (ii) the Petitioner applied for 
a promotion; (iii) the Respondent had a vacancy for which it was seeking applicants; (iv) the 
Petitioner was qualified; and (v) the Petitioner was denied the position and the Respondent continued 
to seek applicants or filled the position with a person from a different class. 

5. The Respondent contends that since the Petitioner allegedly did not meet the posted qualifications for 
the County Maintenance Engineer position, she cannot establish a prima facie case of sex 
discrimination. 

6. The Petitioner, on the other hand, contends that the only reason she was found by the Respondent to 
be unqualified is that it used standards which had not been promulgated pursuant to the procedures 
required by the North Carolina Administrative Procedures Act, Chapter 150B of the North Carolina 
General Statutes ("APA") to determine whether she was qualified or not. 

7. The Petitioner further contends that as between herself and Mr. Winkler who did not meet the posted 
qualifications, she was the more qualified of the two. 

8. Pursuant to the provisions of the Administrative Procedure Act, a '"Rule" means any agency 
regulation, standard or statement of general applicability that implements or interprets laws enacted 
by the General Assembly . . . ." N.C. Gen. Stat. §150B-2(8a). 

9. The OSP guideline regarding equivalency determmations, which mandates two years of directly 
related experience for every one year of formal education in those instances when a job applicant does 
not meet the posted base level educational requirement, meets the APA's definition of a "Rule." The 
OSP guideline establishes a standard that is of general applicability and implements or interprets the 
provisions of the State Personnel Act found at North Carolina General Statutes section 126-4(3). 

10. Since the OSP equivalency guideline has never been promulgated as a rule or regulation under the 
procedures provided for in the APA, it is an invalid rule which cannot be utilized to determine the 
Petitioner's qualifications. 

11. Since Mr. Cates and other subsequent interviewers considered the Petitioner qualified, but for the 
application of the invalid rule regarding equivalency, the Petitioner would have been considered 
qualified for the County Maintenance Engineer position. 



1353 8:14 NORTH CAROLINA REGISTER October 15, 1993 



CONTESTED CASE DECISIONS 



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Sex Discrimination 

12. The Petitioner has met her burden of producing evidence to establish a prima facie case of sex 
discrimination. 

13. The Petitioner having established a prima facie case, the Respondent has the burden of producing 
evidence of legitimate reasons for selecting Mr. Winkler. 

14. Among the non-discriminatory reason articulated by the Respondent were the following: 

A. Winkler met the primary base level educational requirement for the position and the 
Petitioner did not. The Respondent had made a decision to value a B.S.C.E. degree more 
highly than any other combination of education and experience. 

B. Winkler had experience at the engineering level. The Petitioner allegedly did not. 

C. Winkler had experience in maintenance. The Petitioner had no experience in the maintenance 
branch. All of the Petitioner's experience was in construction and traffic services. 

D. Because he had worked in Division 11 as an Engineering Associate and as a Staff Engineer, 
Winkler was a known commodity. 

15. In making individual employment decisions the employer is free to weigh each person's particular 
talents and performance. So long as the judgment of individual merit is made in good faith and is 
not corrupted by stereotypical assumptions about the abilities of certain classes of people, the 
judgment of the employer can be sustained as a "legitimate reason." Causey v^ Ford Motor Co. . 516 
P. 2d 416, 423 (5th Cir. 1975). 

16. The Petitioner's evidence regarding the pretextual nature the Respondent's reasons including among 
other things, the following: 

A. Despite failing to meet its parity goals. Division 1 1 made no special efforts to recruit women 
or promote women to engineering level positions. 

B. The Petitioner had performed duties normally handled by a resident engineer when she 
handled purchase order contracts. 

C. The Petitioner performed maintenance jobs and functions while she was a highway inspector 
even though the work was performed by the Construction branch rather than the Maintenance 
branch. 

17. When Mr. Winkler applied for the County Maintenance Engineer position in Alexander County, the 
position went to John C. Jarrell, a high school graduate with two years of college towards a degree 
in business administration and twenty-four years of employment with the Respondent, under an 
agreement with OSP which allowed the Respondent to down grade the position to that of County 
Maintenance Supervisor. Mr. Jarrell's Road Maintenance Supervisor position was comparable in pay 
to the Petitioner's Technician IV position. The only significant differences between Mr. Jarrell and 
the Petitioner are that the Petitioner is a female, the Petitioner possesses a more relevant educational 
background, Mr. Jarrell had more years of DOT experience, and Mr. Jarrell worked in the 
Maintenance Division. The fact that Mr. Winkler was considered the more qualified applicant when 
he went up against the Petitioner, but was not considered as such when he went up against a male 
with qualifications similar to the Petitioner's, leads one to the inescapable conclusion that the 
Petitioner's sex must have played a significant role in the Respondent's determination of who was the 
better qualified applicant. 



8:14 NORTH CAROLINA REGISTER October 15, 1993 1354 



CONTESTED CASE DECISIONS 



18. The evidence indicates that the Respondent had an established practice of allowing its long time male 
employees to advance up the career ladder by either downgrading positions until the employee gained 
the necessary credentials to move up or by allowing the male employee to work against a job position. 
The Petitioner was not offered the same opportunity that has been offered to her male counterparts 
in the past even though she had similar educational background and work experience. Again, the only 
explanation for this difference in treatment appears to be the Petitioner's gender. 

19. Gender having been a motivating factor in the Respondent's decision not to promote the Petitioner, 
the question arises whether or not the Respondent would have made the same decision even if it had 
not considered the Petitioner's gender in making the promotion decision. 

20. Even though the Respondent had made a decision to value the B.S.C.E. degree above other degrees 
and combinations of education and experience, there were still five instances where applicants who 
lacked the preferred degree were promoted to the CME position after February, 1991 . 

21. Even though the Respondent had made a decision to value the B.S.C.E. degree above other degrees 
and combinations of education and experience, there were two instances where the Respondent down 
graded the CME position to allow long term male employees who did not meet the posted 
qualifications to acquire the necessary experience for promotion to the CME position. 

22. Thus one concludes that had the Petitioner been a male, it is more probable than not that she would 
have been given an opportunity to work against the CME position. 

23. The Respondent discriminated against the Petitioner on the basis of her gender when it failed to 
promote her to the County Maintenance Engineer position in Caldwell County. 

RECOMMENDED DECISION 

The State Personnel Commission will make the Final Decision in this contested case. It is 
recommended that the Commission adopt the Findings of Fact and Conclusions of Law set forth above and 
that the Petitioner be awarded the County Maintenance Engineer position in Caldwell County, or a comparable 
position, the differential in pay between the CME position and the Technician IV position since March 28, 
1992, and reasonable attorney fees. 

ORDER 

It is hereby ordered that the agency serve a copy of the Final Decision on the Office of Administrative 
Hearings, P.O. Drawer 27447, Raleigh, N.C. 27611-7447, in accordance with North Carolina General 
Statutes section 150B-36(b). 

NOTICE 

Before the State Personnel Commission makes the FINAL DECISION, it is required by North Carolina 
General Statutes section 150B-36(a) to give each party an opportunity to file exceptions to this RECOM- 
MENDED DECISION, and to present written arguments to those in the agency who will make the final 
decision. 

The agency is required by North Carolina General Statutes section 150B-36(b)to serve a copy of the 
Final Decision on all parties and to furnish a copy to the Parties' attorney of record. 

This the 22nd day of September, 1993. 



Brenda B. Becton 
Administrative Law Judge 



1355 8:14 NORTH CAROLINA REGISTER October 15, 1993 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 
COUNTY OF BRUNSWICK 



IN THE OFFICE OF 

ADMENflSTRATTVE HEARINGS 

92 DST 1439 



DENNIS WILLOUGHBY 
Petitioner, 



THE BOARD OF TRUSTEES OF THE TEACHERS 
AND STATE EMPLOYEES RETIREMENT SYSTEM 
Respondent. 



RECOMMENDED DECISION 



This contested case was heard on August 19, 1993 in Raleigh, North Carolina by Administrative Law 
Judge Thomas R. West. 

APPEARANCES 

Petitioner was represented by Kathleen Shannon Glancy, with Charles T. Hall presenting oral 
argument on Petitioner's behalf. 

Respondent was represented by Assistant Attorney General Alexander M. Peters. 

ISSUE 

Under G.S. § 135-106(b), is the amount of the offset which reduces long-term disability benefits 
because of the receipt of social security disability benefits the gross amount of the social security disability 
benefits or the net amount after deduction of attorney fees and costs associated with obtaining the social 
security disability benefits? 

FINDINGS OF FACT 

The parties stipulated at the hearing to the following facts which the Administrative Law Judge finds 
to be the relevant fects of the case: 

1 . The Petitioner is a former employee of the State of North Carolina who was forced to retire 
because of illness. 

2. As a result of his employment with the State of North Carolina and his disability, the Petitioner 
applied for long-term disability benefits under the Disability Income Plan administered by the 
Respondent. G.S. § 135-106. This application was approved and the Petitioner is receiving these 
long-term disability benefits. 

3. Long-term disability benefits under the Disability Income Plan are subject to reduction by the 
amount of the primary disability benefits that a retiree receives from the Social Security 
Administration. G.S. § 135- 106(b). This reduction shall hereinafter be referred to as the 
"offset." 

4. The Petitioner also applied for disability insurance benefits under the Social Security Act. 42 



8:14 



NORTH CAROLINA REGISTER 



October 15, 1993 



1356 



CONTESTED CASE DECISIONS 



U.S.C. § 423. 

5. The Petitioner's claim for disability insurance benefits was denied by the Social Security 
Administration at the initial level. The Petitioner requested reconsideration of the denial of his 
claim for disability insurance benefits but was again denied. The Petitioner then requested an 
administrative hearing concerning his claim for disability insurance benefits. 

6. The Petitioner retained Kathleen Shannon Glancy, Attorney at Law, to represent him at the 
administrative hearing on his claim for social security disability insurance benefits. The 
Petitioner and the attorney signed an agreement by which the attorney would receive no fee if the 
Petitioner's claim for disability insurance benefits were denied, but a fee of one-quarter of the 
back disability insurance benefits paid the Petitioner if the claim were approved. The Petitioner 
was also required to reimburse the attorney for any costs associated with the case. 

7. After a hearing, social security's Administrative Law Judge approved the Petitioner's claim for 
disability insurance benefits under the Social Security Act. 

8. Under the provisions of the Social Security Act, 42 U.S.C. § 406, one-quarter of the Petitioner's 
back disability insurance benefits, $3,445.25, was withheld by the Social Security Administration 
and not paid to the Petitioner. 

9. TTie Petitioner's attorney filed a petition on her own behalf with the Social Security Administra- 
tion seeking approval of an attorney fee of one-quarter of the Petitioner's back disability 
insurance benefits, $3,445.25. The attorney's petition was approved and the Social Security 
Administration paid $3,445.25 directly to the attorney. In addition, the Petitioner reimbursed the 
attorney $219.00 for costs that the attorney incurred in representing the Petitioner. 

10. Upon learning that the Social Security Administration had approved the Petitioner's claim for 
disability insurance benefits, the Retirement Systems Division of the Department of the State 
Treasurer which acts as the Respondent's agent and administers the Disability Income Plan on 
a day to day basis made a computation of the off"set that should be applied because the Petitioner 
had now received disability insurance benefits from the Social Security Administration for the 
same period of time that he had received long-term disability benefits from the Disability Income 
Plan. In computing the offset the Retirement Systems Division used the gross amount of 
disability insurance benefits for the Petitioner, rather than the net amount after attorney fees had 
been withheld by the Social Security Administration and paid to the Petitioner's attorney and after 
payment by the Petitioner of costs associated with presenting his case to the Social Security 
Administration. 

11. The only issue presented in this case is whether under G.S. § 1 35- 106(b) the amount of the ofl'set 
should be the gross amount of disability insurance benefits under the Social Security Act or the 
net amount of those benefits after deduction of attorney fees and costs associated with obtaining 
the disability insurance benefits from the Social Security Administration. 

ANALYSIS AND CONCLUSIONS OF LAW 

State employees who become disabled by illness may obtain benefits under the Disability Income Plan 
of North Carolina. G.S. § 135-100 et seq. Long-term disability benefits under the Disability Income Plan 
are "... reduced by any primary Social Security disability benefits and by monthly payments for workers' 
compensation to which the participant or beneficiary may be entitled ..." G.S. § 135-106(b). This case 
presents the question of how the language of G.S. § 135- 106(b) should be interpreted when a recipient of 
long-term disability benefits has to pay attorney fees and costs associated with obtaining social security 
disability benefits. 

The Respondent asserts that the key to understanding the offset is the reference to "primary Social 



1357 8:14 NORTH CAROLINA REGISTER October 15, 1993 



CONTESTED CASE DECISIONS 



Security benefit" in the statute, arguing that the "primary" benefits are the benefits before any adjustment for 
attorney fees or costs. The Respondent's own interpretation of the off'set is inconsistent with this argument. 
In cases where an individual is entitled to both workers' compensation benefits and social security disability 
benefits, the social security disability benefits are reduced because of the workers' compensation benefits. 
42 U.S.C. § 424a(a). Since the Disability Income Plan also contains an offset for workers' compensation 
benefits, there is the potential for a double oflTset in cases in which an individual is eligible for workers' 
compensation, social security disability benefits and long-term disability benefits. This situation would be 
present whenever a State employee suffers a disabling injury on the job. If the Respondent were to offset the 
social security disability benefits before they had been reduced because of the workers' compensation there 
would be a double offset. The Respondent has wisely avoided such an irrational result by offsetting only the 
net social security disability benefits after they are reduced because of the workers' compensation offset. In 
so doing the Respondent effectively concedes that the word "primary" in the statute is not an absolute. 

Seen in context, the word "primary" in G.S. § 135- 106(b) has a rather different meaning than the 
Respondent proposes. Under the Social Security Act, benefits are payable not only to the disabled individual, 
but also to the minor children and often the spouse of the disabled person. 42 U.S.C. § 402(b), (c), and (d). 
The word "primary" in G.S. § 135-106(b) speaks to the obvious question, "Does the amount offset include 
the benefits going to the dependents?" The statute answers the question in the negative by referring to the 
"primary" benefits. The only benefits to be off set are the "primary" benefits going to the disabled individual, 
not the benefits going to the dependents. 

The crucial word in G.S. § 135-106(b) is not "primary", but "entitled." The statute provides for an 
offset for the social security disability benefits for which the beneficiary "may be entitled." The entitlement 
to which the statute refers can only be the Petitioner's entitlement to benefits under the Social Security Act. 
We must, therefore, look to the terms of the Social Security Act to determine the amount to which the 
Petitioner is entitled. The Social Security Act provides a method by which attorneys who represent social 
security claimants are compensated. A claimant for social security benefits who is represented by counsel and 
who is successful in obtaining those benefits receives only three-quarters of the back benefits to which he or 
she would otherwise be entitled. 42 U.S.C. § 406. Social Security is required to "certify for payment" to 
the attorney the other one-quarter of the social security claimant's back benefits. The social security claimant 
never sees this money, because it is paid directly to the attorney. Legal fees paid by a social security claimant 
are an intrinsic part of the Social Security Act. A social security claimant may not be said to be entitled to 
benefits under the Social Security Act when the Social Security Act specifies that those benefits are to be paid 
not to the claimant, but to the claimant's attorney. Therefore, it must be held that the Petitioner was not 
entitled to the attorney fees paid to his attorney. 

This interpretation of the statute is bolstered by the fact that it is not merely the Petitioner who 
benefitted by the legal counsel he retained. The offset gives the State of North Carolina an obvious interest 
in the outcome of the Petitioner's social security disability claim. In retaining counsel and pursuing 
administrative appeals of the denial of his social security disability claims, the Petitioner was acting in effect 
as a "Private Attorney General", pursuing the State's interests. It would be unjust enrichment for the State 
to receive a greater sum from the Petitioner than he actually received in back benefits, when the rest of the 
back benefits went to an attorney that the Petitioner retained to protect not only his interests, but those of the 
State. To do otherwise would be a tremendous disincentive to other beneficiaries of the Disability Income 
Plan to pursue their social security disability claims aggressively. St Vincent's Hospital y^ Alires, 778 P.2d 
277 (Colo. App. 1989). Seen in this light it is only appropriate to reduce the amount of the offset not only 
by the fees paid directly by the Social Security Administration to the attorney, but also by the costs paid by 
the Petitioner to his attorney. 

RECOMMENDED DECISION 

The Petitioner's long-term disability benefits under the Disability Income Plan shall only be reduced 
by the net social security disability benefits that he received after deduction of attorney fees and costs 
associated with obtaining those social security disability benefits. 



8:14 NORTH CAROLINA REGISTER October 15, 1993 1358 



CONTESTED CASE DECISIONS 



ORDER 

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative B 

Hearings, P.O. Drawer 27447, Raleigh, N.C. 27611-7447, in accordance with G.S. § 150B-36(b). ^ 

NOTICE 

The agency making the final decision in this contested case is required to give each party an 
opportunity to file exceptions and proposed Findings of Fact and to present written arguments to the agency. 
G.S. § 150B-36. 

A copy of the final agency decision or order shall be served upon each party personally or by certified 
mail addressed to the party at the latest address given by the party to the agency and a copy shall be furnished 
to his attorney of record. G.S. § 150B-36. 

The agency that will make the final administrative decision in this contested case is the Respondent, 
the Board of Trustees of the Teachers and State Employees Retirement System. 

This 20th day of September, 1993. 



Thomas R. West 
Administrative Law Judge 



i 



i 



1359 8:14 NORTH CAROLINA REGISTER October 15, 1993 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 
COUNTY OF ORANGE 



IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 

93 DST 0198 



RORY DALE SWIGGETT, 
Petitioner, 



THE BOARD OF TRUSTEES OF THE 
NORTH CAROLINA LOCAL GOVERNMENTAL 
EMPLOYEES' RETIREMENT SYSTEM, 
Respondent. 



RECOMMENDED DECISION 



This contested case was heard in Raleigh, North Carolina on August 19, 1993 by Administrative Law 
Judge Thomas R. West. 

APPEARANCES 

Petitioner was represented by M . Travis Payne of the law firm Edelstein and Payne, Post Office Box 
28286, Raleigh, North Carolina 27611. 

Respondent was represented by Assistant Attorney General, Alexander McC. Peters. 

WITNESSES 

Testimony was received from the following persons: 

Rory Dale Swiggett - Petitioner 

Timothy S. Bryan - Chief of Member Services of the Retirement System 

EXHIBITS 

The exhibits listing was omitted from this publication. If you would like a copy please contact the 
Oflice of Administrative Hearings, Hearings Division, P.O. Drawer 27447, Raleigh, NC 27611-7447, 
telephone (919) 733-2698. 

FINDINGS OF FACT 

1 . Petitioner Rory Dale Swiggett (Swiggett) was employed by the Town of Chapel Hill as a fire fighter. 
On September 15, 1992, the medical board of the North Carolina Local Governmental Employees' Retirement 
System approved Swiggett's application for disability retirement. 

2. Swiggett was employed as a firefighter for the Town of Chapel Hill on April 20, 1976. At that time, 
the Town of Chapel Hill had a policy requiring a six (6) month waiting period before employees could join 
the North Carolina Local Governmental Employees' Retirement System (System). Swiggett executed an 
application to join the System on December 14, 1977. For an unknown reason, amounts were not withheld 
from Swiggett's monthly pay check or contributed by the Town of Chapel Hill to the System until November 
1979. 

3. On October 22, 1992, Swiggett executed an Application form promulgated by the System to purchase 



8:14 



NORTH CAROLINA REGISTER 



October 15, 1993 



1360 



BBUHBafiBBBi^as^raBaaB 



CONTESTED CASE DECISIONS 



service credits for employment omitted from the System through error. 

4. The parties stipulate that Swiggett is entitled by law to purchase omitted service and service credits 
back to the date he was employed by the Town of Chapel Hill, April 20, 1976. See G.S. 128-26(m). 

5. G.S. 128-27(d3) establishes the formula for calculating the allowance upon disability retirement of 
persons retiring on or after July 1, 1971 but prior to July 1, 1982. Under the formula established by this 
statute, the allowance is calculated on the basis of the member's average final compensation prior to his 
disability retirement and the creditable service he would have had at the age of 65 if the member had 
continued in service. 

6. G.S. 128-27(d4) establishes the formula for calculating the allowance upon disability retirement of 
persons retiring on or after July 1, 1982. Under the formula established by this statute, the allowance is 
calculated in one of two ways. As relevant to this case, the disability allowance is equal to a service 
allowance calculated based on the member's average final compensation prior to his disability retirement and 
the creditable service he would have had had he contmued in service until the earliest date on which he would 
have qualified for an unreduced service retirement allowance. 

7. G.S. 128-27(d3) details the formula for computation of the disability allowance that was in force from 
July 1, 1971 through June 30, 1982. On October 9, 1981, Chapter 128 was amended by adding G.S. 128- 
27(d4) effective July 1. 1982. 

8. If Swiggett's disability allowance is determined pursuant to G.S. 128-27(d3), the allowance is 
significantly greater than if determined pursuant to G.S. 128-27(d4) as a result of the method of calculation 
above. In addition, if the disability allowance is determined under G.S. 128-27(d3) rather than G.S. 128- 
27(d4), Swiggett's effort to re-purchase benefits back to the date he was hired becomes relevant to determining 
his disability allowance. 

9. Swiggett contends that his disability allowance must be computed pursuant to G.S. 128-27(d3) 
because, but for the mistake of the Town of Chapel Hill, he would have had five{5) years of creditable service 
in the System in May 1981. Swiggett contends that a failure to compute his disability allowance pursuant to 
G.S. 128-27(d3) would be an unnecessary impairment of his contract with the System and violate Article I, 
Section 19 of the Constitution of North Carolina and the Fifth and Fourteenth Amendments of the Constitution 
of the United States. 

10. The System contends that Swiggett's disability allowance must be calculated pursuant to G.S. 127- 
28(d4) because the purchase of omitted service pursuant to G.S. 128-26(m) caimot retroactively change the 
date upon which a member completes five (5) years of creditable service. 

11. In 1985, the case of Jesse R. Simpson, Richard D. Moore, on behalf of themselves and all other 
similarly situated y^ North Carolina local Governmental Employees' Retirement System, et.al. , 83 CVS 4461 
was filed in Superior Court. The question presented in the case was whether the pension rights of vested 
members of the System may be made subject to adverse legislative modification without violating Article 1 , 
Sec. 10 of the Constitution of the United States. 

12. The Superior Court granted the System's motion for summary judgment in 1986. The case was 
appealed to the Court of Appeals. 

13. On December 22, 1987, the Court of Appeals held that the relationship between the vested members 
of the System and the System is one of contract. The Court held that members of the System "... had a 
contractual right to rely on the terms of the retirement plan as these terms existed at the moment their 
retirement rights became vested." Simpson y, N.C. Local Government Employees' Retirement System , 88 
NC App. 218, 224 (1987). 

The Court went on to hold an impairment of the contract could be constitutional if the impairment 



1361 8:14 NORTH CAROLINA REGISTER October 15, 1993 



CONTESTED CASE DECISIONS 



was reasonable and necessary to serve an important public purpose. The Court reversed the summary 
judgement for the System and remanded the case for trial on, among other things, the issue of whether the 
impairment was reasonable and necessary. 

14. On or about November 1, 1990, the Simpson case was certified as a class action. Three (3) classes 
were defined, among them Class C. Class C consisted of all current members of the System who had five 
(5) or more years of creditable service in the System prior to July 1, 1982 and who, if they became disabled 
and retired on disability on or after January 1, 1991 and on or before July 1, 2005, would be paid an 
allowance in accordance with G.S. 128-27(d3). 

15. A Notice of the Class Action was issued on November 1, 1990. Swiggett did not receive a copy of 
the Notice from the Superior Court or at his workplace at the Town of Chapel Hill. 

16. The Simpson case was settled in 1990 by the parties pursuant to the Settlement Agreement received 
as R2 in this contested case. The settlement provides that all Class C members who become disabled and 
retire on disability retirement on or after January 1, 1991 and on or before July 1, 2005 will be paid a 
disability allowance by the System in accordance with G.S. 128-27(d3). 

17. Swiggett meets the definition of a member of Class C. 

18. When members of the System have purchased service credits as allowed by G.S. 128-26, they have 
been treated with respect to the method of calculation of retirement benefits like all other members of the 
System with the same or similar creditable service. 

Based on the foregoing, the undersigned makes the following: 

CONCLUSIONS OF LAW 

1. The System's contention that Swiggett's purchase of omitted service pursuant to G.S. 128-26(m) 
cannot retroactively change the date upon which he completes five (5) years of creditable service is patently 
contrary to the System's policy of treating members of the System who have purchased service credits as 
allowed by G.S. 128-26 the same as all other members of the System with the same or similar creditable 
service. 

As a result, 1 conclude as a matter of law that the System acted arbitrarily and capriciously in taking 
the position that Swiggett did not vest in the System prior to July 1, 1982, and calculating his disability 
allowance pursuant to G.S. 128-27(d3). 

2. The System's treatment of Swiggett, in addition to being contrary to its stated policy and thus arbitrary 
and capricious, is not supported by any authority or argument that could allow a conclusion that there is a 
rational basis for treating members who purchase omitted service differently from members who do not have 
to purchase omitted service. Indeed, it is clear from G.S. 128-27(m)(3) that members who purchase omitted 
service pay at least the same as members who do not have to meet that burden and may indeed have to pay 
twice as much if the employer fails to contribute. 

To not allow Swiggett to vest retroactively would not only be arbitrary and capricious, it would be 
State action denying Swiggett the equal protection of the law in violation of Article I, Section 19 of the 
constitution of North Carolina and the Fifth and Fourteenth Amendments of the Constitution of the United 
States. 

Based on the foregoing, the undersigned makes the following: 



8:14 NORTH CAROLINA REGISTER October 15, 1993 1362 



BSHiBaaH^^ 



CONTESTED CASE DECISIONS 



RECOMMENDED DECISION 

The Board of Trustees of the North Carolina Local Governmental Employees' Retirement System 
should direct the Retirement Systems Division to calculate Swiggett's disability retirement benefit pursuant 
to G.S. 128-27(d3). 

ORDER 

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative 
Hearings, P.O. Drawer 27447, Raleigh, N.C. 2761 1-7447, in accordance with North Carolina General Statute 
150B-36(b). 

NOTICE 

The agency making the final decision in this contested case is required to give each party an 
opportunity to file exceptions to this recommended decision and to present written arguments to those in the 
agency who will make the final decision. G.S. 150B-36(a). 

The agency is required by G.S. 150B-36(b) to serve a copy of the final decision on all parties and to 
furnish a copy to the parties' attorney of record and to the Office of Administrative Hearings. 

The agency that will make the final decision in this contested case is the Board of Trustees of the 
North Carolina Lxjcal Governmental Employees' Retirement System. 

This the 28th day of September, 1993. 



i 



i 



Thomas R. West 
Administrative Law Judge 



i 



1363 8:14 NORTH CAROLINA REGISTER October 15, 1993 



NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM 



1 he North Carolina Administrative Code (NCAC) has four major subdivisions of rules. Two of these, 
titles and chapters, are mandatory. The major subdivision of the NCAC is the title. Each major 
department in the North Carolina executive branch of government has been assigned a title number. 
Titles are further broken down into chapters which shall be numerical in order. The other two, 
subchapters and sections are optional subdivisions to be used by agencies when appropriate. 



TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE 
TITLE DEPARTMENT LICENSING BOARDS CHAPTER 



1 


Administration 


Acupuncture 


1 


2 


Agriculture 


Architecture 


2 


3 


Auditor 


Auctioneers 


4 


4 


Commerce 


Barber Exammers 


6 


5 


Correction 


Certified Pubhc Accountant Examiners 


8 


6 


Council of State 


Chiropractic Examinere 


10 


7 


Cultural Resources 


General Contractors 


12 


8 


Elections 


Cosmetic Art Examiners 


14 


9 


Governor 


Dental Examiners 


16 


10 


Human Resources 


Dietetics/Nutrition 


17 


11 


Insurance 


Electrical Contractors 


18 


12 


Justice 


Electrc)lysis 


19 


13 


Labor 


Foresters 


20 


14A 


Crime Control & Public Safety 


Geologists 


21 


ISA 


Environment, Health, and Natural 


Hearing Aid Dealers and Fitters 


22 




Resources 


I andscape Architects 


26 


16 


Public Education 


Landscape Contractors 


28 


17 


Revenue 


Marital and Family Therapy 


31 


18 


Secretary of State 


Medical Examiners 


32 


19A 


Transportation 


Midwifery Jomt Committee 


33 


20 


Treasurer 


Mortuary Science 


34 


*21 


Occupational Licensing Boards 


Nursmg 


36 


22 


Administrative Procedures 


Nursing Home Administrators 


37 


23 


Community Colleges 


Occupational Therapists 


38 


24 


Independent Agencies 


Opticians 


40 


25 


State Personnel 


Optometry 


42 


26 


Administrative Hearings 


Osteopathic Examination & Reg. (Repealed) 


44 






Pharmacy 


46 






Physical Therapy Exammeis 


48 






Plumbmg, Heating & Fire Sprinkler Contractors 


50 






Podiatry Exammeis 


52 






Practicing Counselors 


53 






Practicing Psychologists 


54 






Professional Engineers & Land Surveyors 


56 






Real Estate Appraisal Board 


57 






Real Estate Commission 


58 






Refrigeration Examiners 


60 






Sanitarian Exammeis 


62 






Social Work Certification 


63 






Speech & Language Pathologists & Audiologists 


64 






Therapeutic Recreation Certification 


65 






Veterinary Medical Board 


66 



Note: Title 21 contains the chapters of the various occupational licensing boards. 



8:14 



NORTH CAROLINA REGISTER 



October 15, 1993 



1364 



BSOSaiBISUBfiefiS 



CUMULATIVE INDEX 



CUMULATIVE INDEX 

(April 1993 - March 1994) 

Pages Issue 

1 - 92 1 - April 

93 - 228 2 - April 

229 - 331 3 - May 

332 - 400 4 - May 

401 - 455 5 - June 

456 - 502 6 - June 

503 - 640 7 - July 

641 - 708 8 - July 

709 - 792 9 - August 

793 - 875 10 - August 

876 - 1006 11 - September 

1007 - 1184 12 - September 

1185 - 1307 13 - October 

1308 - 1367 14 - October 



i 



Unless otherwise identified, page references in this Index are to proposed rules. 



i 



ADMINISTRATION 

Administration's Minimum Criteria, 5 

Low-Level Radioactive Waste Management Authority, 232 

State Employees Combined Campaign, 1008 

ADMINISTRATIVE HEARINGS 

Civil Rights Division, 370 
General, 366 
Rules Division, 367 

AGRICULTURE 

Aquaculture, 1212 
N.C. State Fair, 506 
Plant Industry, 513, 1212 
Standards Division, 1212 
Veterinary Division, 515, 1212 

COMMERCE 

Alcoholic Beverage Control Commission, 408, 711, 1310 

Banking Commission, 408, 798, 1312 

Cemetery Commission, 810 

Savings Institutions Division: Savings Institutions Commission, 461 

State Ports Authority, 811 

EN'MRONMENT. HEALTH, AND NATLTIAL RESOLUCES 

Coastal Management, 279, 571, 962 

Comprehensive Conservation and Management Plan, 882 ^ 

Departmental Rules, 465 M 

Environmental Management, 210. 556, 658, 797, 893, 1254 ^ 

Health Services. 283, 335. 425. 465, 572. 709. 762. 966, 1098 



1365 8:14 NORTH CAROLINA REGISTER October 15, 1993 



CUMULATIVE INDEX 



Marine Fisheries, 28, 568 

Mining: Mineral Resources, 829 

NPDES Permit, 710 

Soil and Water Conservation Commission, 214, 1322 

Wildlife Resources Commission, 32, 663, 831, 965, 1255 

Zoological Park, 337 

FINAL DECISION LETTERS 

Voting Rights Act, 4, 407, 460, 795, 880 

GENERAL STATUTES 

Chapter 7A, 1185 
Chapter 150B, 1187 

GOVERNOR/LT. GOVERNOR 

Executive Orders, 1, 93, 229, 332, 401, 456, 641, 793, 876, 1007, 1209, 1308 

HUMAN RESOURCES 

Aging, Division of, 815 

Blind, Services for the, 884 

Deaf and Hard of Hearing, Services for the, 650 

Facility Services, 94, 883, 1014, 1215, 1312 

Medical Assistance, 25, 414, 553, 712, 888, 1316 

Medical Care Commission, 644, 1312 

Mental Health, Developmental Disabilities and Substance Abuse Services, 7, 413, 516, 1086, 1217 

Social Services Commission, 237, 733, 1091 

INSURANCE 

Actuarial Services, 555, 657, 1249, 1321 
Engineering and Building Codes Division, 1248 
Financial Evaluation Division, 1093, 1317 
Life and Health Division, 1094, 1318 
Medical Database Commission, 463, 737 
Special Services Division, 1096 

JUSTICE 

Alarm Systems Licensing Board, 761 

Attorney General, Office of the, 28 

Criminal Justice Education and Training Standards Commission, 253 

Criminal Justice Standards Division, 241 

Departmental Rules, 1096 

Private Protective Services Board, 252, 890 

Sheriffs' Education and Training Standards Commission, 738 

LABOR 

OSHA, 97, 231, 278, 892 

LICENSING BOARDS 

Architecture, 43 

Cosmetic Art Examiners, 969 

Dental Examiners, State Board of, 763 

Electrolysis Examiners, Board of, 841 

Foresters, Registration for, 674 

Geologists, Board of, 285 

Landscape Architects, 1256 



8:14 NORTH CAROLINA REGISTER October 15, 1993 1366 



CUMULATIVE INDEX 



Medical Examiners, Board of, 591 
Mortuary Science, Board of, 45, 342, 971 
Nursing Home Administrators, 346 



Opticians, Board of, 1261 m 



Pharmacy, Board of, 47, 354, 1326 

Physical Therapy Examiners, 53, 767 

Plumbing, Heating and Eire Sprinkler Contractors, 360 

Practicing Psychologists, Board of, 844 

Real Estate Commission, 53, 364 

Refrigeration Examiners, 1148 

Social Work, Certification Board for, 428 

Therapeutic Recreation Certification Board, 1328 

LIST OF RULES CODIFIED 

List of Rules Codified, 61, 290, 432, 593, 769, 845, 1264 

PUBLIC EDUCATION 

Elementary and Secondary Education, 427, 470 

STATE PERSONNEL 

Office of State Personnel, 286, 972, 1262 

STATE TREASURER 

Retirement Systems, 337, 1146 

TAX REVIEW BOARD 

Orders of Tax Review, 503 

TRANSPORTATION 

Highways, Division of, 669, 836 
Motor Vehicles, Division of, 1145 



i 



1367 8:14 NORTH CAROLINA REGISTER October 15, 1993 



NORTH CAROLESf A ADMINISTRATIVE CODE 



The full publication consists of 53 volumes, totaling in excess of 15,000 pages. It is supplemented monthly 
with replacement pages. A one year subscription to the full publication including supplements can be 
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Human Resources 
(includes CON) 
Human Resources 
Human Resources 
Human Resources 
Human Resources 
Human Resources 
Human Resources 
Human Resources 
Human Resources 
Human Resources 
Human Resources 
Human Resources 
Human Resources 
Human Resources 
Insurance 
Justice 
Labor 
OSHA 
Labor 

Crime Control and 
Public Safety 
EHNR (includes EMC) 
EHNR 

Coastal Management 
EHNR 
Wildlife 


$750.00 
90.00 
75.00 
75.00 
10.00 
45.00 
90.00 
60.00 
30.00 

60.00 
10.00 
45.00 
30.00 
90.00 

45.00 
30.00 
30.00 
30.00 
30.00 
30.00 
60.00 
45.00 
75.00 
90.00 
30.00 
60.00 
45.00 
90.00 
90.00 
90.00 
30.00 
45.00 
45.00 ' 

45.00 
90.00 
45.00 
45.00 
30.00 
45.00 




1 




2 




3 




4 




5 




6 




7 




8 




9 




10 




11 




12 




13 




14 




15 




16 




17 




18 




19 




20 




21 




22 




23 




24 




25 




26 




27 




28 




29 




30 




31 




32 




33 




34 




35 




36 




37 




38 




REVISED 


Continued 



Volume 


Title 


Chapter 


New 
Subject Subscription* 


Quantity 


Total 
Price 


39 


15A 
15A 

16 

17 

17 

18 

19A 

20 

21 

21 

21 

22 

23 

24 

25 

26 


11-18 EHNR 90.00 
19-26 EHNR 

(includes Breathalizer) 75.00 
1 - 6 Education 30.00 
1 - 6 Revenue 75.00 
7-11 Revenue 60.00 
1 - 8 Secretary of State 30.00 
1 - 6 Transportation 90.00 
1 - 9 Treasurer 45.00 
1-16 Licensing Boards 75.00 
17-37 Licensing Boards 75.00 
38 - 70 Licensing Boards 
1 - 2 Administrative Procedures 75.00 
1 - 3 Community Colleges 10.00 
1 - 3 Independent Agencies 10.00 
1 State Personnel 60.00 
1 - 4 Administrative Hearings 10.00 

Subtotal 

(North Carolina subscribers add 6% sales tax) 

Total 






40 






41 






42 






43 






44 






45 






46 






47 






48 






49 






50 






51 






52 






53 





















i 



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